Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A sec­ondary school teacher ac­cused of sex­u­al mis­con­duct in­volv­ing a Form Two stu­dent has lost his ap­peal against a judge’s re­fusal to or­der the dis­clo­sure of the iden­ti­ty of the per­son who re­port­ed him.

In a judg­ment de­liv­ered late last week, Ap­pel­late Judges Char­maine Pem­ber­ton, Car­la Brown-An­toine and Ricky Rahim dis­missed the ap­peal by the teacher, whose iden­ti­ty has been with­held be­cause the al­le­ga­tions against him re­main un­proven.

The teacher is ac­cused of im­moral, ob­scene or dis­or­der­ly con­duct in of­fice fol­low­ing an al­leged in­ci­dent in­volv­ing a teenage girl dur­ing the school’s lunch pe­ri­od in June 2022.

Ac­cord­ing to the al­le­ga­tions, he took the stu­dent in­to a small room and ques­tioned her about her home life. He al­leged­ly asked whether she had ever had sex­u­al re­la­tions with an old­er man and whether he could be her first be­fore al­leged­ly touch­ing her in­ap­pro­pri­ate­ly.

Fol­low­ing the in­ci­dent, the stu­dent trans­ferred to an­oth­er sec­ondary school, while the teacher was sus­pend­ed pend­ing the out­come of the dis­ci­pli­nary process.

In Jan­u­ary 2023, the teacher filed a re­quest un­der the Free­dom of In­for­ma­tion Act (FOIA) seek­ing the iden­ti­ty of the per­son who re­port­ed him, as well as a copy of that per­son’s re­port. He al­so re­quest­ed in­for­ma­tion on the steps tak­en by the Min­istry of Ed­u­ca­tion to in­ves­ti­gate the com­plaint.

The min­istry re­fused the re­quest, ar­gu­ing that dis­clo­sure would prej­u­dice the on­go­ing in­ves­ti­ga­tion and dis­cour­age whis­tle-blow­ers from pro­vid­ing in­for­ma­tion in con­fi­dence in the fu­ture.

The teacher’s at­tor­neys sub­se­quent­ly filed a law­suit, con­tend­ing that al­though the al­leged vic­tim had been iden­ti­fied to the de­fence, know­ing the iden­ti­ty of the per­son who made the re­port was still nec­es­sary to prop­er­ly de­fend the al­le­ga­tions.

The dis­ci­pli­nary pro­ceed­ings were stayed while the law­suit, along with an­oth­er mat­ter con­cern­ing the dis­clo­sure of ad­di­tion­al re­ports re­lat­ed to the in­ves­ti­ga­tion, re­mains pend­ing.

The law­suit was dis­missed by Jus­tice West­min James, prompt­ing the ap­peal.

In the Court of Ap­peal’s rul­ing, Jus­tice Rahim found that the tri­al judge’s han­dling of the case, in­clud­ing his re­view of the min­istry’s pub­lic in­ter­est bal­anc­ing ex­er­cise, could not be fault­ed.

Jus­tice Rahim said the tri­al judge had cor­rect­ly giv­en sig­nif­i­cant weight to pro­tect­ing the iden­ti­ty of a con­fi­den­tial in­for­mant.

“He went on to con­sid­er that if there is no con­fi­dence by in­for­mants that they will be af­ford­ed pro­tec­tion there would be in­jus­tice to them and the chil­dren who are un­able to speak for them­selves,” Jus­tice Rahim said.

“In my view, the tri­al judge was cor­rect in his as­sess­ment,” he added.

Jus­tice Rahim al­so ruled that the teacher had been pro­vid­ed with suf­fi­cient de­tails to de­fend the al­le­ga­tions.

“This court ob­serves that in a re­al sense, the per­son mak­ing the al­le­ga­tion is the child. The ap­pel­lant was in­formed sub­se­quent­ly as to the name of the child and the cir­cum­stances which des­ig­nat­ed the oc­ca­sions such as the time, place and na­ture of the al­le­ga­tion,” he said.

As part of the rul­ing, the teacher was or­dered to pay $61,425 in le­gal costs.

Jus­tice Pem­ber­ton al­so de­liv­ered a con­cur­ring judg­ment in which she agreed with Jus­tice Rahim’s find­ings. She went fur­ther, how­ev­er, by crit­i­cis­ing the teacher’s de­ci­sion to pur­sue both the law­suit and the ap­peal.

“It ap­pears as if the FOIA process was used to de­lay the dis­ci­pli­nary process which, so far, has not been demon­strat­ed to be taint­ed in any way, form or fash­ion,” Jus­tice Pem­ber­ton said.

“The court ought not al­low its process­es to be used in this man­ner,” she added.

The teacher was rep­re­sent­ed by Navin­dra Ram­nanan and Ricky Pan­do­hee. The Min­istry of Ed­u­ca­tion was rep­re­sent­ed by Make­da Browne-Al­fred, Rachael Ja­cob and Lianne Thomas.