NZTDT 2014/50
IN THE MATTER
of the Education Act 1989
AND
IN THE MATTER
of charges brought by the Complaints
Assessment Committee of the New
Zealand Teachers Council
BETWEEN
COMPLAINTS ASSESSMENT
COMMITTEE
Applicant
AND
BART DE JONG
Respondent
_____________________________________________________________
DECISION OF TRIBUNAL
_____________________________________________________________
Tribunal:
Kenneth Johnston (Chair)
Sally Ormandy
Maraea Hunia
Hearing:
On the papers
Decision:
5 June 2014
Counsel:
Rebecca Scott for Complainant
Stephen Franklin for Respondent
2
INTRODUCTION
By notice of charge dated 12 July 2013, the New Zealand Teachers
Council’s Complaints Assessments Committee, the Complainant herein,
charges the Respondent with serious misconduct.
The Notice particularises the basis for that charge in the following terms:
“Particulars of charge
2.
The Complaints Assessment Committee, pursuant to section
139AT(4) charges that the teacher behaved in an unprofessional
manner amounting to serious misconduct in that while he was a teacher
employed at XXXXXXXXX School, he entered into an inappropriate
relationship with a female student aged 10 years, in that:
2.1 between 17 December 2011 and 30 December 2011, he
engaged in prolific text messaging with a 10 year old student;
2.2 the text messages were of an intimate and affectionate nature
including stating that he missed the student, loved her, called
her his girlfriend and sent text messages ending with a series
of “x”s and “o”s, a common depiction for kisses and hugs;
2.3 warned the student a number of times by text to make sure
that her mother did not find out about the text messaging,
otherwise they may get into trouble;
2.4 organising to meet on 20 December 2011;
2.5 attempted to cover up the text messaging by asking the
student to delete the text messages;
2.6 text messaging occurred against a background of the teacher
having been cautioned by the school Principal to be aware of
the student’s infatuation with the teacher.
3
The conduct alleged in paragraphs 2.1 – 2.6 either separately or
3.
cumulatively amount to serious misconduct pursuant to section
139AB of the Education Act 1989 and Rules 9(1)(d), (e) and (o)
of the New Zealand Teachers Council (Making Reports and
Complaints) Rules 2004.”
The Chairman convened a pre-hearing telephone conference on 22 August
2013 in which both Ms Scott and Mr Franklin took part.
At that conference, counsel indicated to the Chairman that an agreed
statement of facts would be filed.
Thus the matter was not allocated a hearing date, but the Chairman gave
directions in relation to the filing and service of submissions.
One issue which arose at an early stage concerned the form in which the
Tribunal’s decision would be published.
EVIDENCE
As already foreshadowed, the evidence in this case was in the form of an
agreed statement of facts, and we set this out in full:
“MAY IT PLEASE THE TRIBUNAL:
1. The Complaints Assessment Committee (the CAC) of the New
Zealand Teachers Council and the Respondent have agreed to
the following Summary of Facts.
Introduction
2. The Respondent is a registered teacher (registration number
XXXXXX), who at all material times taught at XXXXXXXXXX
School, XXXXXXXXXX.
3. By letter dated 28 February 2012, the Chair of the XXXXXXX
School Board of Trustees sent a mandatory report regarding the
4
Respondent to the New Zealand Teachers Council.
The
mandatory report alleges that the Respondent was believed to
have engaged in serious misconduct in relation to the following
actions:
a. That he sent inappropriate text messages to a 10 year old
student (R) at XXXXXXX School.
b. That he ignored requests from R’s parents not to send text
messages to their daughter.
c. That he denied having texted R to the principal and a
board member.
d. That he did not disclose having received written personal
notes from R.
e. That he was not outright and forthcoming regarding his
actions at a disciplinary hearing carried out by the school.
4. A CAC was appointed to investigate the mandatory report.
Following the investigation, the CAC resolved to lay a notice of
charge alleging serious misconduct and referred the matter to the
Disciplinary Tribunal.
Background
5. The Respondent was R’s teacher in 2010, until R was moved into
a different class during the second term of 2011. While R was in
the Respondent’s class, the school’s principal noted that R
seemed to have an infatuation with the Respondent, and the
principal warned the Respondent to be careful in his dealings with
her.
6. In December 2011, the Respondent took two classes surfing,
including the class R had moved into. R’s mother gave R the
Respondent’s
cellphone
number,
so
she
could
Respondent she would not be attending the surfing trip.
tell
the
5
Complaint
7. On 29 December 2011, the Principal received a complaint from
R’s parent, who alleged that the Respondent had been texting R
during the school holidays.
8. The principal asked a member of the Board of Trustees to contact
the Respondent about the Complaint. The Respondent advised
the member of the Board that he had not texted R during the
school holidays. The Respondent then contacted the Principal,
and advised her that he had only texted R about the surfing trip,
had not contacted her during the school holidays, and that he had
sent R less than ten texts.
9. In early 2012, R’s mother further contacted the Principal. She
advised that her son told her he had seen R’s text messages from
the Respondent, that they included things like ‘I wish there wasn’t
this age gap between us’, and ‘you know I like you’.
10. The principal then organised a Board of Trustees meeting to
discuss the situation, which was held on 11 January 2012. Prior
to the Board meeting, the Principal called the Respondent, and
advised him that it was possible to obtain a transcript of his text
messages from his cellphone provider.
The Respondent then
advised the principal that he had not been truthful, that he had
sent a large amount of text messages to R, and that some of the
texts referred to the age gap between them.
11. R’s parents made a formal complaint to the Board of Trustees
and the Police on 12 January 2012.
12. The
Respondent
was
subsequently
dismissed
from
employment with XXXXXXX School for serious misconduct.
his
6
Police investigation
13. The police investigated the complaint, including obtaining a
transcript of the text messages between the Respondent’s and R
between 17 – 30 December 2011 (attached). The texts include
numerous messages of an intimate and affectionate nature, many
of which stated that the Respondent missed R, loved her, cared
for her, agreed to be her boyfriend, and that he wanted to hug
and kiss her.
The Respondent called R “hottie”, “cutie” and
“girlfriend”. The Respondent also warned R not to tell her mother
about their texts, and asked her to delete messages. The text
messages refer to the Respondent and R organising to meet up
in December 2011, in a way that could be explained as running
into each other accidentally at a movie theatre. The texting was
sent from early in the mornings to late at night.
Charges
14. The Respondent was charged with sexual grooming of a young
person under section 131(b) of the Crimes Act 1961.
The
Respondent was found not guilty in the District Court at
XXXXXXXXX. The Judge’s sentencing notes attached spoke of
the Respondent’s conduct as “deplorable”, “disturbing and
predatory”. He found the Respondent to be a “liar” and “deceitful”
and that the “The charge was not made out – not because you
proved your innocence, but because the legislation was not well
drafted”.
Respondent’s explanation
15. The Respondent accepts that the particulars noted in the Notice
of Charge are correct and that the conduct in the Notice of
Charge amounts to serious misconduct pursuant to section
139AB of the Education Act and Rules 9(1)(d), (e), (n) and (o) of
the New Zealand Teacher’s Council (Making Reports and
Complaints) Rules 2004 and is conduct warranting referral to the
Disciplinary Tribunal of the Teachers Council.
7
16. The Respondent has indicated that he is not intending to teach
again, agrees that the appropriate penalty is that he is censured
and that his registration is cancelled.”
We do not think it is necessary for us to provide any commentary on those
facts.
OUTCOME
Having regard to the last paragraph of the Agreed Statement of Facts, which
records the parties’ agreement as to the appropriate outcome here, it is
unnecessary for us to go into any detail as to the case against the
Respondent. The Tribunal agrees that the appropriate outcome includes a
censure and an order the Respondent’s registration be cancelled.
PUBLICATION
The real issue in this case relates to the form in which the Tribunal’s decision
is to be published, or, putting the point bluntly, whether the Respondent will
be named in the published version of the decision.
In relation to this issue we begin by setting out in full a statement made by
the Respondent which we are treating as evidence (though in reality, it is
more of a submission):
“Please accept the following statement as I am unable to attend in
person.
I have maintained from the beginning that my actions were wrong, I
have taken responsibility for my actions and have paid a hard price
for what I did. I would like to sincerely apologise for the hurt, distress
and disappointment my actions caused to everyone involved. It is
hard to express an apology on paper but I sincerely hope that my
accountability and cooperation throughout has shown my remorse.
8
I have made it clear that I do not intend to teach again. I voluntarily
agreed to give up my teaching registration. I have purposefully
retrained to seek employment in a different industry even before the
court procedure had determined its outcome. I am not working with
any children and have expressed that I have no desire to do so.
The court process has been finished for almost two years. My family
and the people involved from XXXXXXX School have had time to
move on and forget about what happened. I respectfully oppose my
name being publicised as this would resurface a time everyone
involved would rather forget. My name being published will bring
harm to XXXXXXX school as this will identify the close knit
community and most likely the family involved. The XXXXXX
community have had time to mend, publishing details would mean
that the community will be identified unnecessarily and unfairly. The
Chairman of the Board as well as the Principal have expressed their
favour in opposing any publication as Mr Franklin has clearly outlined.
Further to this it would be unfair to my current employer if details
were to be published. It is a well-established company and any
details publicised could do harm to the business and its reputation.
Since court proceedings finished almost two years ago my family and
I moved to Tauranga for a fresh start. I have complied with every
request that was asked of me and it is safe to say my family and I
paid a heavy price for my actions. I understand certain protocols need
to be followed, but this needs to be put to rest and I, as well as the
XXXXXXX community need to be allowed to move on.”
Both Ms Scott and Mr Franklin made detailed and helpful submissions in
relation to publication.
Ms Scott began her submission by recording that the Complainant was
seeking an Order pursuant to Rule 33(1) varying Rule 32(3) directing the
New Zealand Teachers Council to publish the Tribunal’s decision in a form
which included the Respondent’s name.
9
She then took us to the relevant rules, reminding us that we have jurisdiction
to make such an order in cases where we are satisfied that it is desirable to
do so, having regard to the interests of any person and to the public interest
(see rule 33(2)).
Ms Scott then referred us to a number of previous Tribunal decisions in
which this jurisdiction had been considered. She drew five principles from
these cases, and we accept that these correctly identify the considerations to
which regard must be had:
“20.
From the decisions, the following principles may be discerned:
a. The general presumption (until 1 July 2014), in the statutory
scheme of the Education Act, including its Rules, for hearings
in the Tribunal to be held in private. However, orders can be
made for aspects of the hearing to be made public, including
publication of the name of the respondent, if it is desirable that
an order be made and the public interests and granting the
order outweighs any private interests;
b. There needs to be a particular interest served by an order
being granted to displace the general presumption (NZTDT
2013/27, paragraph 11, final page). Put another way, there
must be special circumstances over and above those
generally regarded as justifying the open administration of
justice (NZTDT 2013/27);
c. In applying the Act and the Rules, the Tribunal strikes a
balance between a range of interests including those of the
schools, teachers, students and witnesses;
d. The concerns of students, employers and witnesses are
relevant to the Tribunal’s determination;
e. Prior publicity of the matter would be relevant (NZTDT
2008/01) although that may be undermined if the publicity is
generated by the applicant.”
Ms Scott also drew our attention to the High Court’s Judgment in Director of
Proceedings v Nursing Council of New Zealand [1999] 3 NZLR 360 where
Baragwanath J was considering the disciplinary regime, and the rules
10
relating to publication, for nurses which at the time were similar to those
under which we currently operate. His Honour emphasised the importance
of the public conduct of judicial – and quasi-judicial – business. Ms Scott also
referred to the more recent High Court decision in M v Police 8 CRNZ 14 in
which Fisher J spoke (at page 15) about how “in general the healthy winds of
publicity should blow through the workings of the courts. The public should
know what is going on in their public institutions. It is important that justice
be seen to be done.”
One of the difficulties in this area is of course that the Legislature and those
responsible for promulgating the rules under which we currently operate
must be taken to have been aware of the elementary principle of the open
administration of justice. In the cases which the Tribunal has dealt with this
issue, it has taken that principle as its starting point. But it has concluded
that it is not enough in any case to justify departure from the default position
(of private hearings and the non-publication of identifying details) laid down
for us in those rules to refer simply to the undoubted public interest in the
open administration of justice. In each case, the Tribunal has asked whether
there is a particular reason – having regard to the various interests involved,
including that of the public – for departing from the default position.
Whatever the personal views might or might not have been of the members
of the Tribunal, there have not been a large number of cases in which the
Tribunal has felt able to conclude that the default position should be departed
from.
Focusing on this case, Ms Scott emphasised the following points:
1. The public interest favours identifying the Respondent because it
involves a teacher interesting himself in an inappropriate way with a 10
year old primary school student and thus what she described as “…a
severe breach of trust and a gross abuse of his position as a teacher of a
student at his school.” She mentioned that the District Court Judge in his
sentencing notes called the Respondent’s behaviour “deplorable”
“disturbing” “predatory” and referred to the Respondent as a “liar” who
engaged in “deceptive conduct”. Ms Scott submits that it can only be in
the public interest that those in the school community and the wider
public be aware of the Tribunal’s decision and be able to identify the
11
Respondent.
Similar arguments could be made in relation to many of
the cases which come before us.
2. Ms Scott then referred to the level of media interest in this case and
suggested that if there is a possibility that publication may result in other
victims coming forward then that too would be a positive outcome.
3. Ms Scott went on to remind us that the Rules under which we operate
relating to publication are to change on 1 July 2014.
We have
commented on this in earlier decisions. In short we do not think that an
upcoming rule change can or should alter our approach, until such time
as the new rules come into effect.
We must discharge our
responsibilities in accordance with the law as it stands at the relevant
time, and it would be entirely wrong of us to anticipate change. As we
have said in at least one other case, that much is evident from Fitzgerald
v Muldoon.
Mr Franklin too provided us with detailed submissions in relation to the
Complainant’s application. Here is how he began:
“The Respondent opposes publication of any report or account of this
hearing in which he, the student, or XXXXXXX School involved in this
matter have their details reported or published or may be identified in
any way”.
He then reminded us of the default position which, as he put it, “… presumes
that proceedings such as these should not be held in public and nor should
the
details
of
the
proceedings
be
published
except
in
“special
circumstances”. As the presumption is that the proceedings and the details
thereof should not be published, it is incumbent upon the Complainant (or
another party) to overcome that clear presumption should it desire that the
details of the proceedings be published”.
We agree, and do not perceive that the Complainant contends otherwise.
12
He then reminded us of our obligations to apply the present rules rather than
anticipate the change which is to take place from 1 July 2014, and quoted a
passage from NZTDT 2013/54 in which we had said just that.
Mr Franklin then made the point that the District Court proceeding which
sparked this disciplinary proceeding took place in late 2012, about 18 months
before the Tribunal sat to deal with the Respondent’s case. The point he
sought to make in relation to this was that republication of the Respondent’s
details would have the effect of punishing him a second time.
As to public interest, Mr Franklin reminded us that the Respondent was
acquitted in the District Court. He objected to Ms Scott having drawn upon
the District Court Judge’s criticisms of the Respondent’s behaviour,
describing these as “semantic”. We are not entirely sure what Mr Franklin
means by making that submission. Ms Scott was, it appears to us, entitled to
draw our attention to the District Court Judge’s criticism. As he says, that
does not alter the fact that the Respondent was acquitted.
Mr Franklin draws our attention to the Respondent’s statement that he has
“…completely
removed
himself
from
the
teaching
and
education
environment”. We accept that, but do not think it has a great deal of bearing
on the decision we need to make in relation to publication. Certainly we do
not think there is much force in Mr Franklin’s contention that, because of that
decision on the Respondent’s part, “… there is no public interest in informing
the school community and wider public of the Tribunal’s decision in this
matter.”
Mr Franklin goes on to submit that “publication will not result in further
charges or other victims coming forward in this case.”
This submission
seems to be based on the fact that the Respondent taught for a relatively
short period of time and only ever at one rural school. That may reduce the
prospect of other victims coming forward, but we cannot accept that it
eliminates that possibility.
In relation to the issue of media interest, Mr Franklin submits that much of
the reporting regarding the matter was factually incorrect and irresponsible.
13
That is not something in respect of which we can comment. It is certainly not
for us to presume to dictate to the media how it treats material.
The next point Mr Franklin makes relates to the size of the community in
which the school at which the Respondent formerly taught was based. This,
he tells us, was very small. The point is, and there is some force in this, that
the publication of the Respondent’s name may lead to the identification of the
student involved. That, we think is a point which weighs against publication.
Then Mr Franklin passes on to us the views of the school’s Principal. He
says that he has been specifically told by the Principal that she does not
support publication. We give that some weight, though we would give it
more weight had we received direct evidence from the Principal herself,
rather than through Counsel acting for the Respondent.
Mr Franklin then refers to earlier decisions of the Tribunal dealing with this
issue, and submits that in order to maintain a degree of consistency in its
approach, the Tribunal should not depart from the default position in this
case.
In his conclusion, Mr Franklin says:
“Counsel for the Respondent respectfully submits that the Tribunal
ought not to permit publications of either details of the proceeding or
the Respondent’s name in this matter. There is little or no public
interest served by further publication of the Respondent’s name and
publication of the Respondent’s name would be inconsistent with
prior decisions of the Disciplinary Tribunal.”
Ms Scott has responded to Mr Franklin’s submissions in a further detailed
submission, but it is unnecessary for us to outline her response.
The Tribunal has of course given careful consideration to the fundamental
issue which arises in relation to publication, that being whether it is desirable
that the Respondent’s name be published having regard to the interests of
any person and to the public interest.
14
We do not perceive there to be much argument around the public interest
point. The law is very clear that, all other things being equal, there is an
interest in justice being administered – at all levels – in an open and public
way.
The cases cited to us by Ms Scott are simply examples of the
articulation of this principle.
But, as we say, the Legislature and those responsible for promulgating the
rules which currently govern this Tribunal must be taken to have known that.
So the question is whether there are particular reasons for saying that the
publication of the Respondent’s name in this case is desirable, having regard
to the interests of any other person and the public interest.
Starting with the Respondent’s interests, the Respondent has less of an
interest to protect in this case than is generally the case in proceedings
before the Tribunal because of course the charges brought against him have
already been the subject of publicity. That, in our minds, is the most telling
consideration, just as it was in earlier cases where the Tribunal made an
order of the type sought here.
We have considered carefully the submissions made on the Respondent’s
behalf relating to the possible detrimental effect of publishing the
Respondent’s name on the school at which he formerly taught, past and
present pupils in that school and the student involved in this case. Again,
whilst there is some force in Mr Franklin’s submissions in relation to the
positions of those parties, the publicity which the Respondent’s actions have
already received means that the publication – or, rather, republication – of
his name will have less impact than it might otherwise have had.
The other group whose interests are relevant here are all teachers other than
the Respondent himself. They, if the Respondent is not named, might be the
subject of suspicion.
On balance, we have come to the conclusion that this is a case in which it is
appropriate for the Tribunal to direct the Council to publish its decision
without removing the Respondent’s name and we will make an appropriate
order. We do so having regard to the public interest and the interests of
other teachers, and taking into account that the reasons for not identifying
15
the Respondent in this case are not as strong as in the usual run of cases
because of the publicity which it has already attracted.
The Complainant seeks costs and no argument has been addressed against
that application.
A Costs Schedule has been provided indicating that the Respondent’s costs
total $6,664.56. Those costs appear to us to be entirely reasonable having
regard to the nature of the case, and we will therefore make the usual order
that the Respondent pay half of these.
CONCLUSION
The Tribunal’s Order is therefore as follows:
1. Pursuant to s139AW(1) (b) of the Education Act 1989, and by consent,
the Tribunal censures the Respondent for his serious misconduct;
2. Pursuant to s139AW(1) (g), again by consent, the Tribunal orders the
cancellation of the Respondent’s registration;
3. Pursuant to s139AW(1) (h) and (i), the Tribunal orders the Respondent to
pay costs in the sum of $3,332.28 to the Complainant by way of costs.
4. Pursuant to rule 33(1) of the New Zealand Teacher’s Council (Conduct)
Rules, the Tribunal directs the New Zealand Teachers Council to publish
this decision in a form which identifies the Respondent.
________________________
Kenneth Johnston
Chairman