Cattanach v Harrison - [2016] ACTSC 60

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cattanach v Harrison
Citation:	[2016] ACTSC 60
Hearing Dates:	18 December 2015
DecisionDate:	5 April 2016
Before:	Walmsley AJ
Decision:	The appeal is dismissed with costs.
Catchwords:	APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court − principles for determining appeals – appeal against error of law CRIMINAL LAW – Jurisdiction, practice and procedure – assault – taking of child – lawful excuse – parental responsibility – honest belief
Legislation Cited:	Criminal Code 2002 (ACT), s 58(3) Criminal Law Consolidation Act1935 (SA), s 80 (1), s 80 (2) Crimes Act 1900 (ACT), s 26 Crimes Act 1900 (NSW) Family Law Act 1975 (Cth) Human Rights Act 2004 (ACT), ss 30, 34 Magistrates Court Act 1930 (ACT) s 219B Court Procedures Rules 2006 (ACT), r 5107(2)(a)
Cases Cited:	Collins v Wilcock [1984] 1 WLR 1172 Fountain v Alexander (1982) 150 CLR 615 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Hewer v Bryant [1970] 1 QB 357 Parrish v CPP (2007) VSC 304 Police v Gray [2016] SASC 39 Pritchard v The Queen (1999) 107 A Crim R 88 R v Bruer [2012] SASCFC 107 R v Kimber [1983] 1 WLR 1118 R v Prasad (1979) 23 SASR 161 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘Marion's Case’) R v Tinkler (1859) 1 F & F 513; 175 ER 832 Walden v Hensler (1987) 163 CLR 561 Watson (1986) 22 A Crim R 308 Williams v R [2006] NSWCCA 26 Zecevic v DPP (1987) 162 CLR 645
Texts Cited:	Judicial College of Victoria, Victorian Criminal Charge Book (29 June 2015), Part 4.13.1.
Parties:	Lyndall Cattanach (Appellant) Rachel Anne Harrison (Respondent)
Representation:	Counsel Mr J White SC (Appellant) Mr P Edmonds (Respondent)
Solicitors ACT Director of Public Prosecutions (Appellant) Canberra Criminal Lawyers (Respondent)
File Number:	SCA 65 of 2014
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 27 July 2015 Case Title: Cattanach v Harrison Court File Number(s): CC12/11119

WALMSLEY AJ

BACKGROUND TO APPEAL

This is a Review Appeal brought by the Director of Public Prosecutions (DPP) under s 219B(1)(a) of the Magistrates Court Act 1930 (ACT) against the dismissal of an information for assault. The question for decision is whether Magistrate Dingwall was correct in finding the respondent not guilty of the offence.

The appellant asks that Magistrate Dingwall’s decision be quashed and the matter remitted to the Magistrates Court to be dealt with according to law.

The appellant has given notice under s 34 of the Human Rights Act2004 (ACT) (the Human Rights Act) asserting rights under that Act. Neither the Attorney-General nor the Human Rights Commissioner intervened, although both were given notice of the appeal.

For the reasons below, the appeal should be dismissed.

FACTS

In late 2012, the respondent’s eight-year-old child was, by her agreement, with her parents. The respondent had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Cattanach v Harrison [2016] ACTSC 60
Case: [2016] ACTSC 60
Decision Date: 5 April 2016

CaseChat Overview and Summary

The appeal in Cattanach v Harrison was heard by the court, where the appellant, Cattanach, contested a decision made by the Magistrates Court. The nature of the dispute centred around an incident where Cattanach was charged with assault after taking a child from the respondent, Harrison, who had been granted parental responsibility over the child. Cattanach claimed he acted with a lawful excuse, believing that the child's welfare was at risk. The court was required to determine the correctness of the Magistrates Court's decision regarding the existence of a lawful excuse and the interpretation of parental responsibility in this context.

The primary legal issue the court addressed was whether Cattanach's belief that the child's welfare was at risk constituted a lawful excuse for his actions, despite Harrison's parental responsibility. The court had to scrutinise the evidence presented and determine whether Cattanach genuinely and reasonably believed that the child's welfare was in jeopardy. Additionally, the court examined the scope of parental responsibility and whether it precluded Cattanach's actions under the circumstances he described.

In its reasoning, the court found that Cattanach's belief was not honestly held or reasonably formed. The court concluded that there was no genuine basis for the belief that the child's welfare was at risk, and therefore, it did not constitute a lawful excuse. The court also affirmed that parental responsibility granted to Harrison was a significant factor that should not be overridden without substantial justification. Consequently, the appeal was dismissed, and the original decision of the Magistrates Court was upheld.

The court ordered that the appeal be dismissed with costs. This decision reinforced the importance of the genuine and reasonable nature of beliefs in claims of lawful excuse and the protection of parental responsibility in custody disputes.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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