G J McRae v Joseph Raymond Giucci

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	G J McRae v Joseph Raymond Giucci
Citation:	[2019] ACTMC 32
Hearing Date(s):	1 April 2019, 2 April 2019
DecisionDate:	24 June 2019
Before:	Special Magistrate Hunter OAM
Decision:	See [281] - [283]
Catchwords:	CRIMINAL LAW - Lawful chastisement – what constitutes lawful chastisement – excessive punishment – credibility of evidence.
Cases Cited:	Byrne v Hebden [1913] St QLD 233 Lowry v Barlow [1921] NZLR 316 Lumb v Police [2008] SASC 198 Police v G, DM [2016] SASC 39 R v Drake (1902) 20 NZLR 478 R v H, N [2012] SADC 101 R v Terry [1955] VLR 114
Parties:	Gregory McRae (Informant) Joseph Raymond Giucci (Defendant)
Representation:	Solicitors ACT Director of Public Prosecutions (Informant) Kamy Saeedi Law (Defendant)
File Number(s):	CC 9850 of 2018

SPECIAL MAGISTRATE HUNTER OAM:

The Defendant has been charged with one count of assault against his son QH on 2 August 2018.

The matter came before me over several days on 17 and 18 January 2019, and 1 and 2 April 2019.

Opening submissions

The Crown opened his case and said that the Defendant hit his Son in the head with a semi-closed fist. His Son is 12 years of age and was in year seven at the time.

The Crown alleged that the Defendant’s son QH woke up when he heard his Father’s alarm. He then got up and did his jobs and got his Brother up for breakfast. The Son then said that he tried to wake his Father and he would not get up. The Son then swore at his Father saying “Fuck you, fuck you all, fuck everything”.

The Defendant then woke up, stormed down the hallway, yelled at his son and swung at his head. His Son ducked out of the way. The Defendant swung at him a second time and again his Son ducked out of his way. The Defendant then swung again at his Son as his Son was walking backwards into the lounge room and hit him on the top of the head which knocked him further into the lounge room. The Defendant then punched him again which put him on his backside. The third punch was when he was sitting on the couch with the dog.

Part of the incident was witnessed by the Defendant’s other son JH who was 11 years of age at the time of the incident. After this event QH then texted his Grandmother and told her what had happened.

QH went to school and told his friend KN and KN took a photograph of the top of QH’s head, on the side of his forehead.

The school contacted QH’s mother, she came and picked him up. Ultimately they went to the Police Station.

The Defence submitted that the Defendant was lawfully chastising QH in direct response to his swearing which was directed toward the Defendant. The Defendant suggests it was two clips around the ear open-handed.

Evidence

QH gave evidence on 17 January 2019 via the remote witness room as he is entitled to do. I was satisfied that QH understood the difference between right and wrong and I was satisfied that he understood the affirmation that he gave, that he was under an obligation to tell the truth. He gave his evidence under that affirmation.

QH gave some evidence about his family situation and said that his parents had separated and he lived part-time with his Father and part-time with his Mother.

QH recalled speaking with police and giving an interview. The recorded interview in chief was played before the Court.

A summary of that interview follows;

QH stated to Police that his Father hit him three times in the head with semi closed fist. QH said that he had woken up to his Father’s alarm clock going off. It was 6:00 hours in the morning. His Father did not answer the alarm and so he decided to get out of bed to turn it off. He went back to his bedroom but could not fall asleep so he decided to get up, have a shower, clean up the house and start the fire.

QH suggested that at approximately 7:00 hours he got his brother JH up so he could have some breakfast. He then decided to get his Father up so that he could get changed and take them to school.

His Father did not get up when called. QH walked down the hallway and swore at him because he was annoyed at him for not getting up in the first place and helping with the chores.

When his Father got up he was really mad and stormed down the hallway. QH said his Father started yelling at him and then went for a swing at his head but he ducked the first swing and weaved out of the way of the second so he could not get hit. Then the other three swings hit him on the right side of his head. QH said his Father hit him three times and they landed on the right side of his head. The first knocked him into the lounge room, the second as he was walking back putting him on his bum, and the third was when he sat on the couch with his dog. QH said that the hits caused marks on his head.

QH said that he was going to walk out of the house and walk to school.

QH said that his Father told him that if he walked out of the house he would hit him with a closed fist in the face. QH said he then went and sat down on the couch and waited for him to get ready.

They got in the car and went to the shops and bought some bread for the boys’ lunch. Then his Father drove him to school.

When he got to school he told his friend KN what happened. He asked KN to look at his face to see if there was anything wrong with him and KN told him there was a mark on his cheek and his eyelid. KN took a photo of QH and showed him and QH said he was shocked.

QH attended his classes and then around 13:40 hours rang his Mother and told her what happened. QH said he told his Mother that his Father had hit him three times. Then he said that he put KN on the phone to speak to his Mother and tell her exactly what happened. They also sent the photo KN had taken of QH to her.

QH said that his Mother then rang someone from the child protection services and came and picked him up from school. QH said that his Mother rang the school to tell them not to allow his Father to pick him up.

QH said that his Brother was having cereal in the kitchen when the incident occurred in the kitchen.

QH said that when his Father went to swing at him, he missed him and hit the fridge instead. QH drew a diagram of where things were in the kitchen and where the incident occurred.

He said that his Father after some time came out and said that if he disrespected him again he would punch him with a full closed fist to the face. He also said that at the door as well.

QH said that when his Father went to hit him he was standing with a stance similar to that seen in UFC.

QH said that he then moved backwards into the lounge room to keep out of his reach and was also inching toward the door.

QH described how his father hit him with a semi-closed fist to the right side of his cheek the 2nd to the eye area and the 3rd to around the ear cheek area.

QH said he was scared and nervous after that happened and started crying and was sad. He said he could not do anything in self-defence because his Father is a big guy.

QH said that when he was crying because he had been hit by his Father, his Father made fun of him because of his crying.

He told Police that when he spoke with KN, KN looked at his face and told him he had a big mark on his face and so KN took a photo of it with his phone.

He said that he called his Mother at about 13:45 hours and told her that KN would explain everything and handed the phone over to him.

QH said he did not give his Father permission to punch him in the face.

Evidence in Court

QH said that at the time of the incident he had a very long fringe and it was necessary to pull his fringe up in order to see his face. That was what KN had to do in order to see the mark.

QH said that at the time of the incident his relationship with his Father was okay and was going well until he started hitting him.

Prior to the incident he said his Father was real cool and would take them to cool places and do stuff with him and JH. QH said his father was lovely and he enjoyed being with his Father.

QH described where he had been hit as the top left-hand side of his forehead between his hairline and his eyebrow and he said he could feel it puffing and it was very sore and red. QH said that was for about two days.

QH described when his Father took a swing at him. As he pulled his arm parallel to his body and elbow to shoulder he extended his arm out to the left and looked like he was going to give him a left hook. QH said that when he swung and hit the fridge it made a massive shaking sound.

QH was shown the map of the area of the house that he had drawn for the Police in the interview and identified the areas on it where the incident took place.

QH said that he had previously sworn and his Father had not complained about it. QH gave an example that once he swore at home and he apologised for it but his Father didn’t appear to have cared.

QH said that he sent text messages to his Grandmother (the Defendant’s Mother) and indicated that he had said some things to her at that time via that mode including what had occurred that morning and that was exhibited before me as exhibit P4.

QH had texted her that it was really bad what had happened and she indicated in her message that was not so bad. QH said that it was his Grandmother who contacted him first about the incident telling him that his Father didn’t mean to do it and he really loves him and there was no need to tell anyone.

QH said that she telephoned him and then when he got to school he texted her. He indicated that he thought it was about 9:00 hours in the morning because he was waiting to sign in for school.

Cross-examination

Defence Counsel asked some questions of QH in relation to a conversation he had with his Mother, about who decided to go to the Police Station. QH said the only conversation he had was that they were going to go to the Police Station after she had received advice.

QH denied that there had been any conversation about where he was to live but he assumed given that his Father had hit him that he would go to live with his Mother.

QH was asked to recall the words he used to his Father on that morning he said they were, “Fuck you, fuck all, fuck everything”. QH was asked whether he knew that was wrong he said, “Yes I knew it was wrong”, but he was relieved by saying it because he wanted to let his Father know he was upset about the morning. He said his Father is usually cranky in the morning so he knew reasoning wouldn’t work so he tried swearing at him. He was trying to make a point.

QH accepted that his Father became angry and stormed down the hallway and attempted to strike him and it was as a result of, or in response to, his swearing.

QH indicated that is brother JH was sitting at the table having his breakfast having poured himself some cereal. He said the fridge to the dining room is approximately a metre, it is not far. He accepted that it could be 2 meters. QH agreed that for JH to see what was happening he would have had to turn around and watched.

QH indicated that he was not slapped he was hit. He also recalled that his Father had a semi closed fist. QH said that it was his understanding that the slap would not cause the swelling that he had on his eye but semi closed fist would.

QH agreed that he had been crying and that could have caused his eyes to be puffy and red. However, QF distinguished between what appears to be just crying, with the marks on his eyelids as well.

QH agreed that KN had told him about incidents where his Father had struck him and the Police action that followed. QH also agreed that was partly why KN suggested that a photograph should be taken.

QH suggested that his eye and puffiness was approximately the same in the photo as it was when he went to the Police Station and spoke to the Police Officer. It was suggested to QH that neither Police Officers saw any swelling at the time that he went to the Police Station. QH said that he had a sore eye and it felt like there was swelling in his view.

QH described it as, “There were injuries when I got to school and for the whole day of school yes. But when I got to the Police Station, yes it may have gotten better, but I do remember it’s still being very sore, if I touched it, or if I did anything with my eyes it would just hurt”.

QH said that after he had spoken to Police he went home and then went to bed. QH said he did not see himself in the mirror and assumed he had a swollen eye because it felt like it was swollen.

It was suggested to QH that the first time he discovered he had a swollen eye was when KN his friend observed and took a photograph. However, QH suggested that he was aware that he had something wrong with his eye because it was sore and KN told him it was swollen.

QH agreed that he had been crying that morning because he had been hit. It was suggested to QH that the reason he had puffiness around his eyes was because he was crying. QH agreed that it could possibly be from crying.

However, QH said that that may be a possibility that his eye was red from crying but he did get hit by his Father and that possibly could have cause the swelling as well.

It was suggested to QH that he did not know where he had been hit but he denied that and said he did know, and showed the temple area particularly. QH denied being hit on the back of the head saying he was hit on the front. He also denied been hit around his ear and said it was the front of his face.

Defence Counsel demonstrated what he says happened that morning. That being that The Defendants arm was at shoulder height at 90° to his body, a swinging motion around shoulder height with a hand open, sweeping the hand toward the intended person. QH agreed with that proposition however disagreed that the hand was open and said it was a half closed fist. He said he was not slapped he was hit and he was hit five times not four.

QH agreed that he had done something naughty and wrong however denied that he dived to the ground in an exaggerated fashion when he was hit. QH said he was not exaggerating, he was hit and he fell to the ground because of the force of the hit.

QH agreed that in the car he also said to his Father that “your fucking lucky I am a legend and ducked”. He also agrees his Father reprimanded him for saying it but did not assault him in any way.

QH received a telephone call from his Grandmother and also there were text messages. QH was asked questions in relation to those messages and that call. QH stated that his Grandmother called him at proximally 9 o’clock in the morning.

QH agreed that he had also received text messages from his Grandmother. It is clear that the messages were in relation to the incident that had occurred earlier that morning.

It was suggested to QH that on the morning when he had tried to wake his Father up he said “Fuck you, fuck all, fuck everything” at least five times. QH disagreed with that proposition.

QH was taken through the text messages on the phone and exhibited before me as D2.

QH agreed that his Grandmother sent him a text message asking if he was awake, he said he phoned her before his Father awoke to tell her he was. QH also said he had a conversation with his Grandmother whilst he was at school. He said that she had tried to ring him on a number of occasions. It was suggested to him that did not happen he said it did.

QH agreed with the text conversation that is depicted in exhibit D2 but says his Grandmother rang him in between those conversations. In relation to blocking his Grandmother from his phone he said it was his idea not his Mother’s but she agreed with him. I note that a phone call was made between QH and the Grandmother at around 11:00 hours in the morning of the incident that was demonstrated in evidence before me by phone records.

Re-examination

QH said the message on 3 August from his Grandmother saying are you okay was after the incident. And when he asked whether his Dad was okay it was because he was concerned for his Father because he loved him despite him hitting him. QH stated he still loves his Dad.

In relation to whether QH felt pain in the area he was hit he said it was painful only if he touched it. QH agreed that if he really cried hard he would get puffy eyes, however the feeling of puffiness he felt on the 3 August was not the same as when he had been crying.

QH said that on the morning of the incident the puffiness he felt was only in his left eye which I note is the eye the he said was hit.

In relation to how his Father swung his hand at him he said it was much faster than that demonstrated by Defence Counsel when he asked him questions.

QH stated that he knew it was wrong to swear at his Father but he was mad and upset with him, however he said he did not know that his Father would hit him when he had said that.

Nicholas Bannon

Constable Bannon was at work in the front office at Belconnen Police Station working with Constable McDonald. Constable Bannon assisted Constable McCragh in his investigation of this matter. He was asked to conduct the evidence in chief interview with QH.

Constable Bannon recalls that QH looked a bit flushed but he did not observe any injuries. Constable Bannon said that he conducted the evidence in chief interview with QH and then took a statement from the Mother. He said the Defendant did come into the Police Station between those two events. Constable Bannon said it was approximately 19:20 hours when the Defendant came to the Police Station.

Constable Bannon stated that the Defendant was angry and said that it was the Police’s job to find his Son. It appeared that Defendant was looking for his son QH at the time he came to the Police Station.

Constable Bannon also conducted an evidence in chief interview with KN that was conducted on 17 August. He also conducted an evidence in chief interview with JH on 4 August.

In cross-examination Constable Bannon stated that he did not see any injuries on QH and had he seen injuries he would have had them photographed and possibly examined by medical practitioner.

JH gave evidence via an evidence in chief interview. JH gave evidence that he had a good relationship with both his father and QH.

JH said what happened that morning was that QH tried to wake him up to get ready for school. Eventually he did get up and went to look for his Father and he said his Father was in his own room. QH told his Father to get up and his Father said no and fell back asleep. QH got angry and said the “F” word three times. JH said his Father then got up very angry with QH, chasing him down the hall to the kitchen. JH said his Father went to hit QH missed and hit the fridge because QH ducked. His Father tried to hit him again and again. QH ducked when his Father tried to hit him. JH said that he almost got hit at that point as he was sitting at the table.

JH said that his Father followed QH into the lounge room and he heard him being hit three times. He said he heard QH cry and his Father say, “Stop whining”.

On the way to school they stopped at the shops first and his Father was nagging QH saying again, “Stop your whining”. JH said that QH told his Father he was lucky that he dodged the two hits and that he was a legend. JH said that his Father then threatened QH that if he swore at him he would punch him and knock him out.

At the end of the day his Father picked him up from school. QH had been collected by his Mother. JH said that he heard his Mother tell his Father that they were off to the Police Station. JH said that Dad yelled and went off and he then yelled and went off at his Sister who was a very nice person. He also yelled at his Parents who were on holidays.

JH said that he did not see the three hits received by QH in the lounge room but he said it sounded like a slapping sound. JH clarified what he meant by this saying it was like knuckles hitting something or something like that. JH said that his Father had a partially closed hand when striking and that was a description similar to that on QH’s version of events.

JH said that in the car the Defendant grabbed QH by the throat, QH grabbed his Father’s hands and his Father said to him don’t swear at me ever again.

JH described the attempt to hit QH when he missed and hit the fridge as sufficiently forceful enough to move the fridge. He said QH at that point stepped backwards away from the Defendant. JH said that QH did so to avoid being hit. JH said he could see part of the lounge room and futon from where he was situated but he did not see the three strikes by his Father upon QH.

JH opined that it was not a correction of behaviour because his Father was angry. He described QH’s face as red from crying when he was in the lounge room. It was JH’s view that he thought there was some little mark upon his eyebrow area on the left side of his face.

JH said that his Father had never disciplined them before for swearing except if it was directed at him.

In cross-examination JH agreed that QH knew he was in trouble for swearing. He also knew that he kept repeating the, “Fuck you, fuck all, fuck everyone”, each time but it was because his Father had said, “What did you say”.

JH agreed that he recalls a phone call between his Father and someone in the car but he thought that was in the after-school trip not in the morning but again he wasn’t sure. He does recall that his Grandmother was crying on the phone but denied ever speaking to her on the phone or speaking about what happened on that morning.

It was suggested to JH that his Father did not grab QH around the throat but he said he was adamant that it happened and that he was sure that his Father spoke to JH’s Grandmother in the afternoon not in the morning.

There was some issue in relation to whether JH had some conversation in between having a break whilst giving evidence. JH agreed that he had said something and that was in relation to the choking when he said he spoke to his Brother asking if the choking happened and QH nodded. [I am uncertain as to whether this contaminates his evidence in that regard however I do not need to decide this as there is no allegation of choking]. I note that the allegation is three punches to the face and head of QH there is no allegation that there was a choking. I do not take into account that matter for any purpose.

JH denied that his Father had clipped QH around the ears, he said it was not a slap and he denied that QH had ever demonstrated a slap or anything like that.

KN participated in an evidence in chief interview. He said that when he arrived at school and saw QH, he looked like he had been crying. KN said that QH told him his Father threw five punches at him. As a result KN took a photo of QH, later at some point KN said we called QH’s Mum. KN said that he saw redness on QH’s face around where he’d been struck and that that redness had dissipated during the day.

KN said that QH had told him that his Father had tried to slap him really hard he ducked two of them but was hit three times by his Father. It was KN’s view that by the time they were in class, there was a little redness but that got better. It was because of the redness he took the photo.

In cross-examination KN said he observe the redness on the forehead and the eye. He agreed that QH’s eyes were red from crying and he also agreed that the reason that QH got hit was because he was swearing.

KN in his evidence said that QH told him his Father had belted him but said it was a slap not a punch and that he saw the red mainly on the left side of QH’s face.

KT is the Mother of QH and JH and is separated from the Defendant and has been for approximately eight years. There was a Family Court Order in relation to the care arrangements for the two boys.

At the time of the incident the boys were at their Father’s place as per the Court Order.

KT said that she received a phone call from QH around 14:00 hours. QH had told her that his Father had hit him. After receiving a call she made several phone calls including to child protection services and then went to the school and collected QH.

KT said that she picked QH up just after three and at the time QH had received at least five miss calls from his Father.

KT said that when she arrived QH appeared to her to be rattled. KT said she observed a very slight red mark on the left side of his face. KT demonstrated that it was at the forehead going throughout the orbit of the eye onto the cheekbone.

KT said that the next day she could see some very slight swelling and asked QH if it hurt and he said it did hurt around the front parietal area and left lateral areas of the forehead.

They attended the Police Station. On the way, QH receive more phone calls from his Father. KT answered the phone and said that they were on their way to the Police Station after what had happened in the morning and the Defendant screamed into the phone telling her to return the child and that he was going to call Police for kidnapping and then he hung up.

KT recalled that she was present at the conversation Police had with QH, she said that he told them he had sworn at his Father and went down toward the kitchen. He heard his Father get up, storm down the hallway after him, yell at him and tried to hit him. QH ducked and weaved and missed two of the hits however his Father pushed him into the lounge room and hit him three times, and on one of those occasions he fell down.

In cross examination KT agreed that a parenting plan had been in place for 3 to 4 years. It came about through mediation between their Lawyers.

KT also indicated that she had spoken to her Family Lawyer from the Legal Aid Office explaining that QH had been hit that morning and she did not know what to do. The Lawyer advised to call care and youth protection. The Lawyer gave her the number to call as well as some further advice.

KT said that she received a photo from KN on the way to the Police Station and showed the Police when she arrived there.

KT said that her children do not lie when it comes to the important things such as this. She also said that she did see a mark around the orbit of QH’s eye. She agreed she said that she had seen it once she was at the Police Station.

It was suggested to KT that Police examined QH. KT denied that and said they did not examine as they were sitting across the table from him. KT agrees that she did not say in her statement anything about a red mark that she saw.

KT also said she did not speak to anyone about it but she had not been asked about it either. It was suggested to her that there was no swelling but she disagreed and said that she saw swelling when she looked at him in the kitchen the next morning where the lighting was very good.

It was suggested to KT that the reason she was making the story up was because she now has 100% care of the children and that was her aim. KT said that after what happened of course she had 100% care. KT also agreed that she had taken out a protection order because of his past behaviour. KT said that she felt very threatened by him because he takes things to the extreme.

KT denied the suggestion that she had taken the course she did by getting the Police involved to further her opportunity get the children back full-time. I noted that the arrangement had being in place for approximately five years prior to this event. KT said that she had not changed the arrangement in that time because it was only if the Defendant agreed to a change that the arrangement would change.

DH is the Grandmother of QH and JH and the Mother of the Defendant. DH said that she had significant interaction with the boys and assisted her Son looking after them. However, since this incident occurred she has not had any contact with them.

DH said on the morning of the incident she rang the boys at 7:00 hours in order to ensure that the boys were up. QH was up and rang her back. QH said that everything was good and he would call her later. DH said that was the only time she had a phone call with him on that day. Which I note was not true according to phone records.

DH said that she initiated a text message to QH asking him whether he was okay. She said the reason she had done so was because she had spoken to the Defendant two minutes prior to that text to say there was an incident that morning and could she make sure that QH was okay.

DH indicated that it was on the Defendant’s hands-free in his car and she could hear both of them and they could hear her.

DH said that the Defendant had called her and told her that he had smacked QH because he kept swearing at him. JH chipped in and said but you kept telling him to do it. DH said that she assured them that she would ring QH and smooth it over. DH said that JH was also upset.

DH asked why her Son had slapped QH, he told her, because he wouldn’t stop swearing at me. DH was taken through the messages that she sent to QH and that he sent to her. One of those messages indicated that QH had been belted by his Father with his Father using his fists.

DH was of the view that QH over exaggerates things but agreed she did not clarify anything about what he’d said about fists. Her reason was she didn’t want to get into an argument with him.

DH said she knows her son and said her son would not use his fists to hit QH. DH said that she was shocked that he would even slap him. DH said that it was her view that he sounded upset and disappointed in himself because that was not the way he wanted to raise his children and he took pride that he would never punish them in that way.

In cross-examination DH was taken through the text messages that were sent between herself and QH that day. DH agreed that she had attempted to call him at around 11:45 hours but did not get through.

There would appear to also be a call from QH to her for a period of one minute and 18 seconds. She accepted that fact although she had said earlier in her evidence that she had not spoken to QH that day when indeed she had. It appears that there was no call between the first call at around 07:15 hours and the call at 11:45 hours.

It was suggested that the timeframe between the text messages was because DH was travelling. Despite that it would appear that out of nowhere QH sent a text message to his Grandmother stating his Father was belting him with his fists.

DH was asked about that phone call despite the fact she didn’t remember it. It was suggested to her that it was most likely smacking rather than belting me with his fist.

[The likely inference one can draw is that in the phone conversation DH suggested that QH was slapped and his replied back with no it was belting with his fists].

Constable Maher

Constable Maher had been a Police O fficer for about 10 months at the time of this incident having graduated in April of that year. Constable Maher gave evidence that KT and QH made a complaint about Joseph Giucci in relation to an assault.

Constable Maher said that they met in the family room at the Police Station. She described that she heard the conversation between Constable McRae, KT and QH about what happened that morning.

When QH was discussing this he made a fist with an open palm describing it as the fingers closed palm open fingers bent downward alongside palm. [I note that was the same as a demonstration made by both QH and JH as to what they had seen].

The officer demonstrated the action. The officer then described that QH had told them that ultimately his Father hit him at least three times in the lounge room causing him to fall back onto the lounge. QH then laid there cuddling the dog. His Father mocked him for being a coward.

Constable Maher indicated that she did not make any observations of injuries to QH however she said he mentioned that he had injuries earlier that day to his left eye and that he had a photograph of it. Constable Maher said she didn’t see any injuries and he appeared fine. She said she was sitting approximately two meters to two and a half meters away from him in a well-lit room.

When looking at the photographs and QH in person she opined that the photograph showed his face was red and there was some swelling around his left eye and his left eye was watering and his eye was redder than what it was when he was sitting in front of her.

Constable Maher said that she did not observe any redness to either eye and that they were clear and normal in her view.

After that conversation she was at the front desk and QH’s Uncle arrived and the Defendant came into the front office asking to speak to QH.

Constable Maher said that the Defendant was quite aggressive and appeared upset when told to wait. Constable Maher described his behaviour to the front office personnel as confronting, and when asking why he was there he thought it was ridiculous that he had come to the Police Station looking for his son.

Constable Maher attended the front office and arrested the Defendant for family violence assault on QH. Constable Maher said that the Defendant became very aggressive and shaped up to Constable McRae and said, “What are my rights why are you arresting me”, and the like. Constable McRae said he explained couple of times why he has been placed under arrest.

Constable Maher attended the holding cell and when Police asked where JH was the Defendant said words to the effect of, “Well you’re the Police so do your fucking job”.

In cross-examination Constable Maher was asked about her notebook where she had recorded that QH was, “assaulted, slapped three times by Father at residence”.

In re-examination Constable Maher indicated that she did not recall whether QH had used those exact words, her evidence was that they were her words that she recorded.

Constable Gregory McRae

Constable McRae had been an officer for approximately 12 months at the time of this incident Constable McRae indicated that they had received notification of a family violence matter and the Complainant was coming into the station. Police met them in the family room at the Belconnen Police Station when they spoke to QH and KT he was sitting on the lounge chair opposite him about between 2 and 4 meters away.

Constable McRae stated that QH told them his Father had a semi closed fist with the fingers tucked up toward the palm of the hand the palm was open and that each strike was made that way. [I note that Constable McRae demonstrated how the strikes were done and I note also that they were very similar to both QH and JH’s demonstration].

Constable McRae said that he observed the photograph and also made observations of QH and saw that the eye was a little bit swollen and pinkish and this was on the left-hand side. He said he would describe that as an injury.

Constable McRae said that he saw that QH was very composed and articulate but he interpreted that there was some emotionality underlying his demeanour.

Constable McRae was advised that the Defendant was at the Police Station he went out to arrest him he said his demeanour was less than courteous in fact he indicated that it was confrontational, aggressive and threatening.

Constable McRae said that when they asked about where his son JH was he said, “I don’t have to fucking tell you anything, go do your fucking jobs”. He bellowed those words through the slit in the door at the officers when they departed.

Constable McRae then gave evidence in relation to his investigation particularly the text messages between QH and his Grandmother.

In cross-examination it was clarified that the indication that he had observed redness to the eye was from looking at the photograph, not his own personal observation of QH.

Defence case

Joseph Giucci said that on the 1 August he was late getting back to pick the Children up and he arranged someone else to do so. He arrived home at approximately 17:30 hours, the boys went to bed at around 19.30 to 20:00 hours, and he went to bed between 21:00 and 22:00 hours.

In the morning he said that he heard his Son swear at him and he said QH repeated the swear words three times. He said that he repeated the sentence five times, therefore there were 15 swear words before he even got out of bed in the morning.

The Defendant said that the first expletives were said whilst he was in bed and then as QH was walking down the hallway near his bedroom he swore again and he asked him what did he say and QH said it again. The Defendant stated that QH said that when he was still in bed, and then the Defendant got up.

The Defendant said that he followed him down the hallway and he clipped him over the ears and he ducked. The Defendant went to clip him again and he ducked again. He then walked into the lounge room and he clipped him over the ears.

The Defendant then described it as a clip around the ear, around the back of the head. It was put to him around the ears? He said yes the back of the head yes.

The witness demonstrated how he did this by cocking his arm back to more or less in line or slightly in front of his shoulder, holding his right hand out bent about 90° angle with an open palm and swinging from a back position forward across the front of his body.

The Defendant stated that when he went to hit him he was a bit frustrated. He said that QH walked into the lounge room and he was about a meter away from him within arm’s reach and he clipped him behind the ears and said don’t you swear at me like that.

The Defendant demonstrated that it was around the back of his ear on the back part of his head behind his ear on the left-hand side. He said, “QH said oh you hit me” and he clipped him again in fact he clipped him twice. The Defendant said QH then threw himself onto the lounge and cuddled up with the dog. The Defendant said if you ever speak to me like that again it won’t be an open hand I’ll it’ll be a closed hand and he said I’ve told you before not to swear at me and that’s enough stop.

The Defendant said that he was angry at the time when he said about the closed hand but he would not hit his children with a fist.

The Defendant said he then drove to the shops to get some bread because they didn’t have any fresh bread. He went down to Kaleen which is approximately 2 km from where they live and then returned home and finished preparing the school lunches.

The Defendant said that QH was quite upset that he smacked him. QH said he was going to walk to school. The Defendant said he said you’re not walking to school you will be dropped off at school or you could ride your bike.

The Defendant said that QH was rude again to him and swore at him. He said that JH was in the front and QH was in the back seat and said “Dad you’re lucky I’m a fucking legend and ducked twice”. The Defendant said he stopped the car and said I told you not to swear at me again he got out of the car walked around to him and told him not to swear at him again. He said he didn’t do anything else other than point his finger. He said there was no physical contact.

The Defendant said he did have a conversation with JH and said that we will ring your Grandmother to see if he had done anything wrong. He did so because it was shocking for all of them because he had never smacked his children before.

The Defendant stated that he did not agree that it was appropriate to hit children and that he did not derive any pleasure from hitting QH.

He said that he spoke to his Mother and told her that he had smacked QH because he swore at him and JH had piped up and said yes he kept swearing at you because you kept asking what he said. The Defendant said that he was more upset that JH was upset.

The Defendant said he went to work. He has his own business as a tiler. He picked up JH and then went to pick up QH. He rang him but there was no answer to his phone. At that point he was outside of the school waiting. He said he waited till 15:30 hours and then went home as he was very upset and distraught. He kept ringing QH’s phone and then he rang the Police who were no help whatsoever he said.

He said he kept ringing QH and QH’s Mother answered the phone and said she was going to the Police Station. He said you’re breaking Court orders and to bring her Son home now, she did not do that.

At approximately 19:00 hours he found out that his Son was at the Police Station after speaking to someone on the helpline.

The Defendant said he went to the Police Station and he asked where his Son was. The Defendant described the Police Officers who came out to speak to him as arrogant and rude and told him, “You’re under arrest”.

Upon arrest the Defendant said something to the effect of I have my rights. When he was asked about where his son JH was he said don’t you think you should have asked me that question before you arrested me and treated me like a junkie, like a piece a shit? The Police then said what did you say, you left him in a car? The Defendant said no, I said do your job and find him. The Defendant said he had been treated very badly and treated like a criminal by the Police.

Cross-examination

The Defendant said that he had spoken to QH a number of occasions to tell him to not swear and said that every time he does swear he pulls him into line.

It was suggested to him that JH must have been lying because he said in his evidence that when he had heard QH swear before you had not said anything to him, and that he sat through and listened to JH give evidence about that fact. The Defendant said he disagreed with JH because he does discipline him.

It was also suggested to the Defendant that QH gave specific examples of when he was playing a videogame and swearing when the Defendant was in the room, and the Defendant looked at him and walked out. The Defendant agreed with that and said yes he did walk away sometimes but sometimes he disciplined them and told them to stop.

It was suggested QH stated in his evidence that when he started swearing JH was in the kitchen sitting at the table eating breakfast. The Defendant disagreed and said no he was not he was in his room. When it was suggested that JH must’ve been lying, the Defendant said JH could have been confused. The Defendant also indicated that the drawing that QH had made of the house layout was incorrect.

The Defendant suggested that QH was walking toward his bedroom when he started swearing not walking away from his bedroom. However, when it was put to him again about the evidence that QH gave he agreed with that evidence. That is, despite QH saying that he checked on him he was walking toward the kitchen when he first started swearing.

The Defendant then said that QH said, “Fuck you, fuck all, fuck this”. The Defendant asked what did you say and QH repeated those words. The Defendant repeated again asking what he said and QH repeated the words he said. This was the stage the Defendant says that JH got up and walk to the kitchen.

The Defendant suggested that he was still getting out of bed and getting up at the end of those three episodes of swearing. It was suggested that he must consider that both QH and JH were lying about the sequence of events. The Defendant said he was listening intently to their evidence because he hadn’t seen them for some months and they looked different.

When questioned about the sequence and what happened in the hallway the Defendant said yes he knocked the bag off the wall and was stamping in his feet and carrying on with a bit of a tantrum.

The Defendant agreed that when he got to the kitchen he did not tell QH to stop swearing in fact encourage him to do so by asking what he had said. The Defendant said that after he had said it repeatedly in the kitchen he swung at him, saying that QH was angry at the time. The Defendant agreed that he swung at QH and missed him. The Defendant agreed that he did not ask QH to stop his behaviour at that point despite his protestation that he was trying to discipline him.

The Defendant said that he said to QH ‘enough is enough’ and followed him into the lounge room. He agreed that he swung and hit QH on the back of the head twice. He agreed that he did not in between these periods stop and have a conversation with QH or tell him to sit down and not swear, in fact he did not tell him to stop his behaviour at all.

The Defendant was asked why the head and he said just a clip over the ears. It was suggested that he could have clipped him on the arm. The Defendant agreed that he was reacting to the situation, he was frustrated and angry, and that he had been in a state that day.

It was suggested to the Defendant that he did not think about the punishment rationally on that morning and he was just fresh out of bed and he was angry about him swearing and frustrated and it was in that frame of mind that he hit QH. The Defendant denied that, stating that he tried to raise his children without hitting them.

It was suggested to him that he kept saying after QH had sworn, “What did you say?” QH told him and again he asked him what he had said, and every time QH was asked what he had said, QH told him. The Defendant said he was in shock.

The Defendant said that he had never discussed with KT about the children swearing because they don’t speak.

The Defendant agreed that he said that next time it will be a closed fist and that he also agreed that he was not in a rational state of mind when he did what he did. He agreed that thinking back on it now it was not a cool calm and collected thing to say to a child particularly after what happened.

The Defendant stated that when he hit QH it was only with the tips of his fingers and that was his intention not the palm of his hand (I find that difficult to accept).

The Defendant said he could not recall that he had said to his Mother that he slapped them and denied that he had just adopted this clip around the ear’s phrase for his own purposes.

The Defendant said that he considered QH was lying about his eye being heavy and full and red and swollen with a red mark.

The Defendant agreed that he did not have a conversation with QH after he slapped him or clipped him around the ears and said because QH is the type of child where you need to let him calm down

However, on his own evidence he said when QH was in the car and swore, the Defendant says he had a calm conversation with him and explained that he shouldn’t swear and when he then swore in the car he didn’t smack him.

The Defendant was asked about what he meant when he said he did not have any criminal convictions, he’d never been in trouble and the Police station was an unfamiliar place. It was suggested that was not true, the Defendant denied it and then he recalled that there may have been a trespass charge.

The Defendant was shown his criminal history which recorded a trespass and a common assault charge. The Defendant said he was of the understanding that he was not charged however he did come to Court and that it was thrown out and he got a good behaviour order.

The Defendant understood that he had no criminal conviction but he accepted that he had been in trouble but it wasn’t a criminal conviction. The Defendant then agreed that he had been in trouble.

In a question from me the Defendant said he had been arrested he had gone to the Police Station although he found it hard to remember.

In further cross-examination the Defendant agreed that he swung twice towards QH and at that point QH had not sworn at him, but he had ducked out of the way, QH walked into the lounge room he followed him in and hit him three times. It was suggested to him that there was no urgency for him to hit him like he did for the purposes of correction or discipline he disagreed with that proposition.

The Defendant said that QH was upset and crying because he was exaggerating what had happened to him and that was because he didn’t hit him hard enough the cause hurt or pain. The Defendant suggested that the whole event took about 30 to 40 seconds from the time he tried to hit him in the kitchen and when he was on the couch.

Submissions

Defence

Defence Counsel referred to Terry v R, Lumb v Police, and Police v G, DM as to the test in respect of whether the application of force on the child is reasonable chastisement. Defence Counsel submitted that I must be satisfied on that test whether or not it was bona fides attempt at correction or an assault.

Defence Counsel submitted that it was clearly understood by all three people at the time of the Defendant’s action that it was in response to QH swearing at his Father. Defence Counsel submitted that there was no evidence of the manner in which the action was taken and that anger or rage or chastisement are not mutually exclusive. And that if some are present whilst others are not that’s not a matter for concern. Defence Counsel submitted that there was a degree of anger but that the action was not taken only out of anger. It was submitted that the Defendant regretted his actions and therefore one could conclude that it was in anger, however, that is not the only conclusion one can draw.

The telephone call to the Defendant’s Mother and its contents does not provide an inference of an unlawful action. Defence Counsel submitted that there is significant dispute about what action was taken in response to the swearing and that may decide the case. Defence Counsel submitted that I must be satisfied beyond reasonable doubt that the manner as described by QH failed the reasonable test so that it then becomes an assault.

Defence Counsel submitted that I must direct myself in accordance with the principles of Liberado when the case turns on conflict in relation to the Prosecution and Defence cases and I need to consider who is to be believed. Defence Counsel submitted that essentially if I draw adverse inferences against the Defendant that does not necessarily conclude that the prosecution has satisfied the burden and proved its case.

Defence Counsel submitted that I would need to prefer the evidence of QH to the exclusion of that of the Defendant. [That is the correct test in my view].

Defence Counsel submitted that one version is a semi closed fist with the palm opened and a punch and a slapping. The Defence Counsel submitted it’s either behind the ear or on the forehead near the eye and that was in dispute.

It was submitted that the taking of the photograph was significant because up until that point no account have been given as to the location of the injury. It was only after KN stated that he saw a mark on the face and forehead that it became significant.

The Police Officer said he saw no eye redness or visible signs and what he observed was not consistent with the photo taken. QH gave evidence that he did not look in the mirror and that it is contrary to a normal action of looking at something if it was painful. [I note that he went to school and it was at school that KN noticed the injury to his eye and showed him in the photograph on his phone].

Defence Counsel submitted that when QH did look in the mirror it was on the next morning and he could not see anything, however the evidence from QH’s Mother was that when she held his face in her hands under good light she could see a slight red mark but that was not observed by any of the police or QH. It was clearly relevant to Police to make observations it was submitted.

Given those circumstances it would be difficult for me to be satisfied that there was an injury and that the injuries clearly in dispute and that should be taken into account when assessing the witnesses’ credibility particularly QH and his Mother.

In terms of the photograph it was submitted that caution needs to be exercised given the colour and detailed redness all over the face. QH conceded that he does get puffy eyes when he cries.

It was submitted that whether he was slapped was contentious in that I could not be satisfied that there was a punch and that is confirmed by JH who said that he heard slapping.

Defence Counsel submitted that I could not be satisfied beyond reasonable doubt that the Defendant did not slap QH in the way he described and therefore cannot exclude it is lawful chastisement.

Prosecution

The Prosecutor also relied on Terry v R which was also adopted by Lumb as to the guiding principles in relation to lawful chastisement.

The Prosecutor submitted that the Defendant applied force to QH and QH did not consent. In the ordinary course of events that would constitute an unlawful assault.

The second issue of course is the factual dispute regarding the evidence of each witness. I must find the facts and if I find an assault occurred I apply those facts to the test of reasonable chastisement.

The Prosecutor submitted the there is evidence to support the Prosecution’s case which included the photograph which is independent evidence. The Prosecutor submitted that there is clearly obvious swelling to the eye [I picked up on it on the first day I must say). However the Prosecutor submitted that I must give myself a warning in relation to the photograph given its quality [I do so].

The Prosecutor submitted that it was the evidence from KN who said he saw the redness which triggered him to take the photograph that was the reason he took it. (I note that he must have seen the swelling to that eye and mark to that part of the forehead because he only took one side of the face not both)

The Prosecutor submitted that the photograph is consistent with where QH said he was struck. It is also consistent with evidence from JH.

The Prosecutor reflected that the Defence Counsel submitted that I must take into account the principles enunciated in Liberato. The Prosecutor submitted this is not a case of word on word and that I must assess the evidence in light of what JH saw, what KN saw and the corroboration of the photograph. That would include the evidence of QH’s Mother.

The Prosecutor submitted that it was important to acknowledge that the description of where the injury was on QH’s face was first described before he was shown the photograph it is not a case of him seeing the photograph first and then saying that’s where he felt the swelling.

The Prosecutor submitted that the swelling is an important factor because QH did not look in the mirror and that strengthens a prosecution case. When he went to see Police he had not looked in the mirror however he said he felt a fullness in his eye. In relation to crying QH said that the feeling he felt was not the same as when he has been crying it was a fullness which is different. The other factor is that it was only on one side of his face where he said he was struck stop

The Prosecutor submitted that QH was an honest witness and that was an honest answer for a 12-year-old to give he used the word fullness (which is a good descriptor in my view).

The Prosecutor submitted we have the evidence of KN and why he took a photograph there was no reason for him to lie about that. He was an honest witness and his evidence should be accepted.

The Prosecutor submitted that turning to QH’s evidence his evidence was consistent with the narrative conceded in this matter, in that there were two swings which missed and then he was pushed into the lounge room and hit three times. That narrative is consistent with what he told KN when he arrived at school and also his Mother and the evidence was consistent with the interview in chief as well. The Prosecutor submitted that it was a consistent narrative in his evidence in Court when he was 13 years of age. He was cross-examined extensively over a period of one and a half days, he broke down however still maintained the consistent narrative. There did not appear to be an exaggeration in his evidence.

That evidence is also consistent with the text messages he sent to his Grandmother saying that his Father had belted him with a fist. In terms of his motive to lie, there was none because it was clear that he loved his Father and indeed after the incident he texted and said that he loved his Father and asked if he was okay. Clearly QH was concerned about his Father and clearly he loved him. It is clear QH had no reason to lie and his evidence appears truthful.

JH also was cross-examined and stuck to the same narrative. The demonstration of what was said to have been the slap by the Defendant was given by both boys who said that the demonstration by defence counsel was incorrect, and demonstrated what they saw happen.

That was consistently at odds with the Defendant’s demonstration of touching with the fingertips to the back of the head only. Defence Counsel submitted that JH heard from the kitchen the slap which is not consistent with the touching of the fingertips to the head (If that were indeed the case I very much doubt whether JH, sitting in the kitchen would have heard a slapping sound of fingers lightly touching the back of QH’s head)

The Prosecutor said that the corrected behaviour was also accompanied by swearing at QH and that is not consistent with reasonable chastisement.

The Prosecutor submitted that the Defendant after this incident spoke with his Mother and questioned whether what he did was ok. The Prosecutor opined if this was a corrective action why then did he called his Mother to discuss it? The evidence suggests that he told his Mother that it was a slap, he did not say it was a clip around the ear.

The Defendant at all times maintain that it was a “clip around the ear” and that was adopted for the purposes of this hearing. The evidence was that after the corrective behaviour the Defendant said “next time it will be a closed fist” which is consistent with the fact that the first time was a semi closed fist.

The Prosecutor submitted that there was no real issue about what had taken place that morning, QH conceded he swore at his Father three times and gave a specific example of exactly what he said and also that his Father asked him to repeat it and so he did. It is clear from the prosecution evidence that QH had never been corrected before for swearing.

The Prosecutor submitted that I should not be satisfied as to the credibility of the Defendant and that he was not honest. That was evident when he said he had never been in trouble in his life that was not true and further, that he was reticent to accept his criminal history when it was put to him.

The Prosecutor submitted that if I was satisfied that on the evidence of QH and JH there was a strike to QH’s face then the matter stops there because that is not reasonable chastisement. A blow to the head is not reasonable or moderate. The Prosecution submitted that the Defence is not made out because of the conduct was done in anger and not for the purpose of correcting behaviour it was a reaction to QH swearing that triggered the Defendant to swing at him.

The Prosecutor submitted that there was no urgency in the action of the Defendant because QH had clearly stopped swearing and there was no immediate need for physical chastisement. At no time did the Defendant say to QH do not swear at me again.

The Prosecutor submitted that I must take into account the age of QH he was 12 years of age at this time going to high school he was articulate and intelligent. Any corrective behaviour should have been through conversation not corporal punishment.

The Prosecutor submitted that in terms of the actual force, if I accept the Prosecution case, it was excessive for the situation and the location being around the face and eye area it was not reasonable to administer that strike. Indeed any strike to the head or neck is not considered to be reasonable according to the authorities.

Even if I were to find that the Defendant was credible, I would find that the action was not reasonable and therefore would not amount to reasonable or lawful chastisement.

The Prosecutor submitted that as was said in R v Terry a hard blow even with an open hand to the head or neck which are vulnerable areas of the body would not be reasonable. Even in 1954 it was not okay to hit a child around the head or face, that is even more so today, the Prosecutor submitted.

The Prosecutor submitted that I must put myself in the shoes of the community to assess having regard to the prevailing community standards whether the action taken by the Defendant was reasonable. The Prosecutor submitted that the Defendant even agreed that to strike someone in the head was not right.

It was submitted that section 60 (1) A of the Crimes Act NSW defence is not available if the strike is to the head and neck. Whilst that section does not apply in the ACT, I can have regard to it because it reflects community standards which were otherwise set out in the common law.

This Prosecutor submitted that I must have regard to the nature and severity of the behaviour in considering whether the punishment was reasonable. The Prosecutor posited ‘does the punishment fit the crime?’

The Prosecutor submitted that given that the child only swore, striking him to the head was not justifiable or reasonable. Further, it was done out of anger and frustration which the Defendant conceded, saying that he was frustrated and that speaks to his state of mind. Also the evidence of JH who stated the Defendant was angry and having regard to the sequence of events the acts of the Defendant were not done for corrective purposes nor were they measured. The action was reactionary and purely out of anger.

The Prosecutor submitted that the Defendant said he aimed at QH’s head swung and missed twice because QH ducked, if the true motivation was correction it was reckless swinging at a child’s head. The Prosecutor submitted that at the time of the action QH had stopped swearing at his Father and the only reason he repeated the swear words was because his Father had asked him to.

The Prosecutor submitted that I should accept the evidence of QH and JH and it is clear that the action taken by the Defendant was not corrective in nature and that was confirmed when the Defendant mocked QH for crying. That was clearly not the action of a parent correcting his Son’s behaviour.

Defence Counsel in reply submitted that I should not consider section 61 of the Crimes Act New South Wales because it does not constitute the community standards of the ACT and if I did so I would fall into error. Defence Counsel submitted that despite reforms in that area the ACT has not expressly said that striking a person to the head would constitute lawful chastisement. (I agree that I should disregard that proposition. I have had no regard to Section 61 of the Crimes Act New South Wales).

Decision

There is no doubt that the Defendant attempted to strike his son QH at least five times. Two of them missing him whilst the other three connected to his head region. That matter was not in dispute and I find that fact proved beyond a reasonable doubt.

The real issues for me to consider are:

a) Whether the connected hits were punches with an semi open fist to QH’s eye and frontal/parietal area, or;

b) Whether he was struck by his Father with an open hand using the tips of the fingers in what could colloquially be described as ‘a clip around the ears’.

After deciding which scenario I accept, I then must consider whether that behaviour or action was reasonable discipline or lawful chastisement.

The facts in relation to whether it was a semi closed fist to the eye and forehead area of QH’s face come from QH and Isaac. I note JH did not see the actual contact made to QH’s head.

The only evidence from JH is that he saw his Father swing at QH who ducked, the first swing missed and the Defendant hit his hand on the fridge which caused it to move somewhat. That evidence is very similar to the description QH gave as to happen as well.

I note the Defendant says that JH was still in his bedroom and could not have possibly seen anything happen. I find that extraordinary given the evidence of both boys. That was not put to JH that he was not there in the kitchen at the time of the punches being thrown.

The Defendant suggested that both JH and QH exaggerated what had happened yet I understand they gave their evidence in chief interview very soon after the incident occurred.

QH gave his evidence in chief interview to police that afternoon. I note the Police Officer considered that QH was a very impressive witness. I also formed that view having heard him give evidence before me as well as watching his evidence in chief interview.

I noted that QH appeared to be an intelligent boy with good communication skills. I am satisfied that he understood the difference between the truth and a lie, particular giving it in a setting of a Court where he must tell the truth. I’m also satisfied that he conceded when he should have and I was satisfied that he was telling the truth when he said that he was hit by his Father on the face with a semi closed fist.

In my view QH was a very reliable witness. To some extent his evidence is corroborated by JH in relation to how his Father had attempted to strike him, his Mother and KN who all said they saw some evidence of swelling around his eye. There is also a photograph which does depict that there is some swelling around his eye. I am also satisfied the text message sent by QH to his Grandmother stating that his Father belted him with his fists is further evidence of what occurred that day.

It was suggested that the redness and swelling could have been because he had been crying however I note that the swelling was only over one eye not both.

I have considered the evidence from the Defendant that QH swore at him whilst he was still in the bedroom. I’m not satisfied that took place. Both JH and QH stated that one set of swear words were said and then it was as QH was walking down the hallway others were said and that was because the Defendant had asked him what did he say and QH replied.

I note that at one point in time when I gave JH a break it transpired that he had spoken to QH but only about one particular incident I note that I did not give him a break until after lunch the day he gave evidence. In terms of what he observed with the attempted swings in the kitchen and the Defendant hitting the kitchen fridge I am satisfied that that was an honest account.

I have turned my mind to whether the boys conspired with each other in relation to their evidence. I found no such conspiracy in the evidence and much of their evidence is corroborated by other evidence.

The Credibility of the Defendant

I turned to the evidence of the Defendant who basically said that he had never been in trouble with the Police before which was not true. I also note what he said about the Police behaviour yet says when he went to the Police Station it was clear on his version of events that he was not swearing or aggressive at all and he minimised his behaviour considerably. I am satisfied his behaviour was as the Police described it to be, which was angry, aggressive and confrontational.

Further the Defendant stated that he had never been in trouble with the police had never been to a Police Station prior to 2 August 2018. The Defendant also indicated that he has never been convicted for anything.

The Defendant was shown his criminal record. He then recalled that he had been to the Police Station after some intense questioning, he then accepted that he had been in trouble before. He also had been to the Police Station and he also had been arrested before. It appears that he received a non-conviction order on those two matters of trespass and common assault. I have not viewed the criminal record and it was not exhibited before me. I recall he said the charges were “thrown out” which is not truthful.

I’m satisfied that the Defendant was being untruthful when he said that he had not been in trouble ever before. I cannot and do not believe that he failed to recall such a significant incident such as having been to the Police station, having been arrested, and charged and having to defend those matters in Court or being sentenced by the Courts on those matters. I understand those matters occurred in 2005 which is not that long ago. In my view that is something that one would never forget, if they had been arrested for the very first time and being dealt with by Police and the Courts for the very first time he would have remembered that very clearly.

The evidence of the Defendant is clearly at odds with that given by both QH and JH. There is also some independent evidence that there was a mark around QH’s eye on the left-hand side which is where he said his Father struck him. That is some independent evidence of both QH and JH’s version of what happened. It is at odds with the Defendant’s version.

Even if I accept the version of both JH and QH as to what happened that morning I must then turned to the evidence given by the Defendant. If I cannot reject his evidence I cannot be satisfied that the prosecution has proved the elements of the offence beyond reasonable doubt.

I have considered the evidence given by the Defendant. As I have already indicated his evidence was at odds with the boys. The real issue is whether he struck QH with a semi closed fist to the eye and forehead region or whether he struck (as he says) him around the back of the head and ear area as a clip around the ears.

I found the Defendant gave evidence in a way to disparage his ex-partner the Mother of the children. He also referred to himself as a the sole carer for his children which is not entirely true given that his ex-partner had the children five days out of 14 days of the fortnight.

In relation to his evidence about going to the Police Station that evening to find his Son, in my view he minimised his behaviour significantly. He did not mention at any stage in his evidence that he had sworn at Police or acted aggressively toward them. In fact his only evidence was in relation to him telling them what he thought. There was no acknowledgement about his behaviour toward Police. This affects his credibility in my view. I do not believe that it’s just a failure to recall. Just as I do not believe that he would have forgotten that he had been arrested previously, charged and attended Court and been sentenced.

I did not find him to be a truthful witness. I found him to obfuscate or denying matters in some of his evidence. I found that he lacked credibility. That was evident when he denied having ever been (in trouble with Police) and that he was the sole carer for the children.

Having been satisfied beyond reasonable doubt that there was the striking, I am also satisfied having considered the evidence before me and having considered the denial by the Defendant in relation to not striking QH at least three times to his left eye and temporal region, that the Defendant did strike QH to the eye region.

That is not the endo of the matter. I must now consider those findings in relation to whether that striking could be considered reasonable or lawful chastisement.

The Authorities

I was referred to several cases including R v H, N [2012] SADC 101, this was a case where a Father had beaten his child and did not try to hide that fact. The mechanism used was either an electrical cord or tree branch apparently this was commonplace in the household.

The Court considered whether this was reasonable chastisement and referred to R V Terry [1955] VLR114, where the Court considered that the punishment must be moderate and reasonable, must have a proper relation to the age, physique and mentality of the child and must be carried out with “reasonable means” and of course the onus lies on the prosecution to prove beyond reasonable doubt that the punish was excessive citing Byrne v Hebden [1913] St R QLD 233

It is clear from that decision that if I found that the behaviour was excessive in the circumstances that it would not be a reasonable correction, particularly if the acts were performed in anger and were intended to intimidate.

I also have been referred to Police v G, DM [2016] SASC 39 where the Court discussed the defence of parental correction.

The Court said that the manner of correction must not be unreasonable. In order to assess whether it is unreasonable, the age, sex and physical development are matters which need to be taken into account. It is also necessary to consider whether the correction was administered by hand or an implement. One must also consider the type of physical correction the nature of any injury or pain produced by it.

The Court held that the suffering of some temporary pain and discomfort by the child will not transform a parent attempting to correct a child into a person committing a criminal offence.

In that case not dissimilar from this case, in that there was three successive smacks however those smacks were on the thigh region and leg not the head. The Court went on to say;

“If one can ever safely say that something is as old as mankind, that something might be parental correction of children. One readily finds this matter addressed in early writings on the law in the context of differentiating that parental task from unlawful assault. As was observed by a Justice of the New Zealand Supreme Court in Lowry v Barlow [1921] NZLR 316:

By the general consent of mankind from immemorial times long antecedent to the common law corporal punishment has been regarded as a proper and effective aid in the training and education of children”.

It is clear that there is always at common law a right of a parent to physically correct a child. However the Court also considered that when assessing the lawfulness or otherwise of parental correction a fundamental question arises as to the purpose of the correction, whether it was positive, or done in malice or revenge rather than chastisement. There is a clear distinction between an act done bone fides for the purposes of parental correction and an act actuated by malice or ill will towards the child. The Court then referred to R v Drake (1902) 20 2NZLR478:

“It was open to the Crown to rebut this contention and to show not only that the force used was unreasonable, but that what was done was not honestly done by way of correction at all but was done vindictively, and that the pretence that it was done for the purpose of correction was merely colourable.”

It is clear that in determining whether an act is lawful chastisement or not one must consider the reasons for the action and whether it was excessive punishment in that regard. It is clear from the authorities that the question of how far is too far remains difficult.

In R v G DM the Court concluded that the authorities strongly militate against a conclusion in that case that a criminal offences committed by a Father administering three smacks on the thigh as parental action in which only no more than short-term reddening of the skin of a fit 12 year old boy.

I have also considered Lumb v Police, another South Australian case considering what constitutes lawful chastisement. That was a case where a childcare worker was convicted of an assault on a four year old child in her care. The facts were that when the child refused to come inside when directed to do so by Defendant she was picked up roughly and carried by either one or both arms of the child and then dropped from a height of about 18 inches causing her to land forcibly on the ground. Clearly that was not reasonable conduct bearing in mind the age of the child. The Court found that to be the case.

The R v Terry is a case that has been followed by many Courts since it was decided. The principal of that case rests in what is lawful chastisement. The Court said

“In the first place, the punishment must be moderate and reasonable. In the second place, it must have a proper relation to the age, physique and mentality of the child, and in the third place, it must be carried out with a reasonable means or instrument. For example, in the case of a healthy 14 year old boy a Father might lawfully cane him with a reasonable cane and if he was persistently disobedient, might be justified in caning him quite severely that is to say the object of causing some pain. The Court went on further to say “if however a parent or person authorised by the parent to chastise a child for the purposes of correction, strikes the child not with any genuine purpose of chastisement and correction at all but out of spite, rage, Fury or anger or ill will then the doctrine of chastisement and lawful correction has nothing to do with that case.”

It is clear from that decision that the lawful correction must not be done if the degree of force or the nature of the blows used was not reasonable in all the circumstances.

In R v Terry the Court also referred to striking to the head and striking with a fist as not proper mechanism for delivering lawful chastisement.

Having considered the authorities I have referred to, I must now consider whether the Defendant, by striking QH with a semi closed fist around the eye area was delivering reasonable corrective punishment.

Findings

The Defendant relies on lawful chastisement as a defence. The facts as I have found them include that QH swore at his Father, his Father asked what he had said and QH had replied using those same words. I accept he did so because he was asked. I also infer that there was some element of cheekiness by doing so, however he had never been disciplined for swearing before, and that was not disputed. The Defendant did not say to him if you do that again I will hit you. He said nothing in that regard. In fact when he attempted to and then struck QH he said nothing to him at all.

The Defendant was angry at QH and whilst there may have been some element of attempting to discipline QH, striking him to the head region was not reasonable in my view. The facts I have found is that he struck him with a semi-closed fist around the eye and temple area.

I am satisfied that behaviour was not lawful chastisement. I have found beyond a reasonable doubt that the Defendant struck QH with a semi closed fist to the eye and forehead area. I find the offence proven.

I certify that the preceding [1]-[283] numbered paragraphs are a true copy of the Reasons for Judgement of her Honour Special Magistrate Hunter OAM.

Associate: Monique Marie Munro

Date: 2 October 2019

[2019] ACTMC 32

24 June 2019