Horan v Ferguson

[1994] QCA 375

IN THE COURT OF APPEAL [1994] QCA 375

SUPREME COURT OF QUEENSLAND

C.A. No. 85 of 1994

Brisbane
[Horan v. F]

BETWEEN:

GLENN WILLIAM JOHN HORAN

v.

F Appellant

Fitzgerald P. McPherson JA. Demack J.

Judgment delivered 23/09/94

Separate reasons for judgment of each member of the court. All concurring as to the orders to be made.

Appeal allowed. In respect of each offence, set aside verdict of guilty and direct that a judgment of acquittal be entered.

CATCHWORDS:CRIMINAL LAW - Sexual offences - Appellant school teacher convicted of 9 complaints of aggravated assault - 7 complainants involved, aged between 10 and 13 years - complaints related to patting of the complainants' buttocks - whether such action amounted to a common assault.

EVIDENCE - Video-taped evidence - transcripts and videos contained irrelevant material, opinions of complainants and a number of inappropriate questions - s.93A Evidence Act

Counsel:	Mr. S. Herbert Q.C. for the appellant Mr. P. Ridgway for the respondent
Solicitors:	C.R. Smith and Associates for the appellant Director of Prosecutions for the respondent

Hearing Date: 22/06/94
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 85 of 1994

Before Fitzgerald P. McPherson JA. Demack J.

[Horan v. F]

BETWEEN:

GLENN WILLIAM JOHN HORAN

v.

F Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 23/09/94

The circumstances of this appeal are set out in the judgments of the other members of the Court and need not be repeated. The appeals can be allowed on the basis which they indicate, and I agree that they should be allowed and verdicts of acquittal entered. However, I think it preferable to add to what is said by the other members of the Court on a point of principle which is raised by these charges, which seems likely to arise with increasing frequency in modern social conditions.

In broad terms, under the Criminal Code, any touching of another person without his or her consent (and, in some circumstances which do not here need to be considered, with consent), is an assault, and every assault is unlawful unless it is authorised or justified or excused by law: Code, sections 245 and 246. None of the provisions which authorise, justify or excuse an assault apply to all the offences alleged against the appellant, although section 280 may have application in relation to some of the appellant's conduct. It therefore becomes necessary to consider whether the prosecution proved not only that the appellant touched each of the complainants but that she did not consent to that touching: Lergesner v. Carroll (1991) 1

Qd.R. 206.
In England also, any touching of a person, however slight, may constitute an offence, known as battery, not assault, although the nomenclature is unimportant. Again, the touching is generally lawful if the person touched has consented to the touching: In re F (Mental Patient: Sterilisation) (1990) 2 A.C. 1, 72. There, Lord Goff of Chieveley, after referring to the "principle ... that everybody is protected not only against physical injury but against any form of physical molestation", said:

"Of course, as a general rule physical interference with another person's body is lawful if he consents to it; though in certain limited circumstances the public interest may require that his consent is not capable of rendering the act lawful. There are also specific cases where physical interference without consent may not be unlawful - chastisement of children, lawful arrest, self-defence, the prevention of crime, and so on."

So described, the common law generally corresponds with the
Code. However, his Lordship went on:

"As I pointed out in Collins v. Wilcock (1984) 1 WLR 1172, 1177,

a broader exception has been created to allow for the

exigencies of everyday life."

Before continuing with this passage, it is desirable to note
what was said by his Lordship, then Robert Goff L.J., in Collins
v. Wilcock. At p.1177F, after referring to the broad exception
in terms identical with those quoted above, he said:
"Generally speaking, consent is a defence to battery; and most

of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod.3. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life."

In re F., after referring at p.72 to "jostling in a street,
social contact at parties, and such like" as falling within the
broad exception "to allow for the exigencies of everyday life",
his Lordship continued at pp.72-73:
"This exception has been said to be founded on implied consent

... . Today this rationalization can be regarded as artificial; and in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent. For this reason, I consider it more appropriate to regard such cases as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life."

While the logical force of Lord Goff's criticism of using a theory of implied consent as the basis for accepting "physical contact which is generally acceptable in the ordinary conduct of everyday life" as lawful may be acknowledged, the broad common law exception which he prefers cannot be utilised in Queensland where the criminal law is codified.

In Mellifont v. Attorney-General (Queensland) (1991) 173 CLR 289, five members of the High Court in a joint judgment said at p.309 "... that it is not legitimate to look to the antecedent common law for the purpose of interpreting the Code unless it appears that the relevant provision in the Code is ambiguous". Their Honours cited as authority Stuart v. R. (1974) 134 CLR 426 at p.437 per Gibbs J., with whom Mason J., and it seems Menzies J., agreed. There, after referring to the joint judgment of Dixon and Evatt JJ. in Brennan v. R. (1936) 55 CLR 253 at p.263, which in turn referred back to Bank of England v. Vagliano Brothers (1891) AC 107, at pp.144, 145, Gibbs J. said that the passage which he quoted from Brennan "... does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground ...". The decision of the Privy Council referred to by his Honour, Robinson v. Canadian Pacific Railways (1892) AC 481 at p.487, which as he says had been cited in Queensland in R. v. Scarth (1945) St.R. Qd. 38 at p.44, provides clear support for his statements. See also R. v. Knutsen (1963) Qd.R. 157, per Stanley J. at pp.170-171, cited with approval in R. v. Kusu (1981) Qd.R. 136 at p.138 by W.B. Campbell J., with whom Matthews J. agreed.

At the time when the Code was enacted, the consent which, in most cases, made touching lawful, included both actual consent and the consent which the law implied in the circumstances referred to by Lord Goff of Chieveley in Collins and In re F.. Unless "consent" in section 245 of the Code is given the extended meaning which it then bore and is taken to include the consent implied by law to the ordinary physical contact experienced in everyday life, there will be an unintended and totally impractical element introduced into the criminal law. In my opinion that result should be avoided.

Further, an honest and reasonable but mistaken belief that consent existed excludes criminal responsibility for a touching if consent would mean that the touching was not unlawful: Code, s.24. In many circumstances associated with everyday living; such a belief will be readily inferred.

The Magistrate who found the appellant guilty did not consider whether the appellant's touchings were ordinary physical contacts in the course of everyday life in the teacher- pupil relationship which existed, and thus not implicitly consented to. Nor did he consider whether if the touchings were not in fact consented to, the appellant nonetheless honestly and reasonably believed that they were.

The appeal should therefore be allowed.

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the Twenty Third day of September 1994

I agree with the reasons of Demack J., which I have had the advantage of reading. In respect of what, in those reasons, his Honour identifies as the fifth complaint and the tenth complaint I wish to add some particular observations of my own.

Each of those complaints involved a touching of the complainant. Neither of them is capable of being viewed as falling within the exception in favour of correction in terms of s.280 of the Code. The fifth complaint related to an occasion when the appellant placed his hands on the girl's shoulders and brought them down her arms. The magistrate characterised this action, accompanied as it was by the words "Hey M - ", as in the nature of a "friendly greeting". He nevertheless found it to have been an unlawful assault. In the case of the tenth complaint, the appellant's act, so far as it can be gathered from evidence, consisted of touching the outside of the complainant's skirt covering her lower abdomen, using his "semi- flat" hand, while the girl was lying on the sick bed. The act is one that to my mind is plainly capable of being construed as a gesture of comfort. It, too, was found to bear the character of an unlawful assault.

In his reasons Demack J. refers to the unsatisfactory nature of the evidence in support of the fifth complaint. Apart from that consideration, it does not seem to me that the appellant's acts in the form in which they were found to have taken place in relation to either the fifth or the tenth complaint can properly be considered an unlawful assault. At common law it has always been recognised that a certain amount of physical contact is an inevitable concomitant of living and moving among people in society. Not only is this true of what is the sometimes unwelcome kind of jostling that occurs in crowded places but also of the sort of slight touching demonstrative of friendship or carried out for the purpose of getting attention, and the like. See R. v. Tinsley (CCA No. 151 of 1986; Aug 26, 1986).

Even if there has always been some theoretical difficulty in identifying the proper legal justification for it, physical contacts like these are not regarded at common law as amounting to a battery or trespass to the person. Originally this may have been because, to sustain a charge of wrongdoing, it was always necessary to allege an act in breach of the King's peace vi et armis et contra pacem domini. It may be a relic of this requirement that it is sometimes still said that, to constitute a battery, the physical contact must be "hostile". Another tendency in the past has been to ascribe the legal immunity attaching to acts of that kind to the presence of an implied or tacit consent on the part of the person touched. See Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177-1178; T. v. T. [1988] Fam. 52, 66. In describing this rationalisation as "artificial", Lord Goff has said that such cases were more appropriately to be considered as "falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life". Re F. [1990] 2 A.C. 1, 72, 73.

It is not possible to apply this rationalisation directly to Queensland because of the way in which the term "assault" is defined in s.245 and in which Chapter XXVI of the Criminal Code is structured. Touching or applying force of any kind to a person, which at common law constitutes a battery, is in Queensland now subsumed under the general definition in s.245 of "assault", which at common law comprises technically only threats to apply force. By s.246 assault is made unlawful and an offence, unless it is authorised or justified or excused by law. Succeeding provisions of the Code identify particular forms of authority, justification or excuse that are available.

It is not possible to bring touching like that involved in the fifth complaint here or in the tenth complaint within the terms of any of those provisions.

Any attempt to solve the problem must begin with the definition of "assault" in s.245. Touching a person is defined as assault but only if it is "without [the] consent" of the person touched. After saying it is unlawful and an offence unless authorised or justified or excused by law, the second sentence of s.246 goes on to add that "application of force" may be unlawful although it is done with the consent of the person touched. The precise scope of this provision continues to provoke debate : see (1993) 17 U.Q.L.J. 287 (R.S. O'Regan Q.C.); but the tentative way in which it is expressed ("may be unlawful") and the fact that it refers specifically to an application of force show that it is at most only a partial qualification of the definition in s.245. In general, a touching that is not "without [the] consent" of the person touched cannot constitute an "assault" as it is defined in that section. The matter of consent, or its absence, is an element of the offence which it is for the prosecution to prove beyond reasonable doubt as part of its case. Lergesner v. Carroll [1991] 1 Qd.R. 206.

Of course, it is not strictly necessary for the prosecution to prove that element of the offence through the mouth of the complainant himself or herself. The nature and extent of the touching or the identity of the person touched will often be such as to enable it to be inferred that it took place without the consent of that person. Indeed, in the case of a baby or a person with serious intellectual disabilities it will often be impossible to adduce direct oral evidence relevant to that issue from the "victim" in person. The proof in those cases will almost always be circumstantial.

Even if there is affirmative testimony from the complainant saying "I did not consent to be touched", or words to that effect, it is not necessarily decisive of the issue. The question remains whether the testimony is to be believed. Despite what the complainant may say on the subject of consent, his or her conduct may directly contradict that oral testimony.

The simple activity of going where inevitably one may be touched is sufficient to invite a degree of unavoidable physical contact, however unwelcome it may be to some people. Everyone knows that, and so, in going there at all, submits to what Lord Goff says is "generally acceptable" in the ordinary conduct of everyday life. Artificial though it may be, it is difficult to avoid the impression that the reason why touching of that kind or degree does not amount to assault is because it is inferentially consented to or accepted by everyone who does not live a hermit's existence but elects to mix with other people in society. What is meant by "generally acceptable" is, after all, that it is generally if tacitly consented to.

It is scarcely possible to restrict the word "consent" in s.245 to a consent that is conveyed in express words. It plainly includes consent that is tacit or implied. Just as the absence of consent may be inferred from circumstances, so too equally its presence may be inferred. Cooper J. gives some examples in Lergesner v. Carroll [1991] 1 Qd.R. 206, at 219. Of course, a person may actively manifest his or her dissent from being touched at all, or in a particular way, or by a particular person. Anyone who, knowing that consent has been withdrawn, thereafter touches that person does so at the risk of committing an assault. Under circumstances like those it would seldom be possible to claim an honest and reasonable belief that the complainant was consenting to being touched. Section 24 of the Code would not afford exemption from criminal responsibility for that touching or assault.

The whole question of what, legally speaking, constitutes an assault is somehow more complex from the theoretical standpoint than it ought to be having regard to the generally trivial physical consequences that are usually involved. But that is often so where the law's efforts to grapple with conduct lie along the borderline of affronts to personal dignity or intrusions on bodily privacy. What is, however, essential to the concept of assault as defined in s.245 is that it should take place "without consent" whether express, tacit, or inferred from the circumstances.

Curiously the question whether this essential element of the offence was established in the present case seems not to have attracted attention either at the hearing of the complaints in the magistrates court, or on appeal before us. Specifically in the case of the fifth and tenth complaints, there is no express evidence at all, either in the tape-recorded interviews or the oral testimony, that the touching in question took place without the consent of the complainant. If there had been, it would then have been necessary for the magistrate to consider whether or not he accepted that testimony beyond reasonable doubt; and also, in the circumstances disclosed here, whether or not the appellant might not have believed on reasonable grounds that the particular complainant consented to being touched in that manner and in those circumstances. Relevant inferences were perhaps capable of being drawn in either direction; but for guilt to be established, the magistrate would have to have been satisfied beyond reasonable doubt.

It is therefore clear that in regard to those two complaints a critical element of the offence was left unproved, or, if proved at all, was never found by the magistrate as a fact. It follows that there has been a miscarriage of justice within the meaning of s.668E(1) of the Code. It is not one that is capable of being corrected under the proviso to that subsection. The findings or verdicts of guilty against the appellant on these two complaints therefore cannot be sustained.

The same defect may also effect the verdicts on the other seven complaints as well, but in their case I am content to rest my decision on the reasoning of Demack J. that any "assaults" that may have been committed were authorised, justified or excused under the provisions of s.280 of the Code.

I would allow the appeal against the findings or verdicts of guilty in the case of each of the nine complaints; set aside those verdicts; and, in respect of each of them, enter judgment of acquittal.

REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered the Twenty Third day of September 1994

On 17 February 1994, a Stipendiary Magistrate found the appellant guilty of nine charges of common assault on young girls. He did not record a conviction and discharged the appellant absolutely under the provisions of s.19(1)(a) of the Penalties and Sentences Act. The appellant has appealed against the findings of guilt.

The appellant is fifty years of age and he graduated as a primary school teacher in 1963. He taught in various primary schools in Queensland, until he commenced teaching at the primary school in question in 1988. In March 1993, a complaint was received by the police from one of the girls at the school.
Investigations were made in April, 1993 and these led to the appellant being charged with ten complaints of aggravated assault, the assaults being of a sexual nature. In all, there were seven complainant girls aged from 10 years to 13 years.

Before the central issue in the appeal is discussed, there
are matters of concern in the investigation and in the way the
case was presented.
Video-recorded Interviews with Young Complainants.

In the course of the investigations, the police officers interviewed a number of the complainants and these interviews were video-recorded. Five such video-recorded interviews were put into evidence. The transcripts were made available on appeal. These transcripts cause concern.

First, the interviews contain much that is irrelevant to
the charges, for example a complainant's interest in Little
Athletics, (ex. 4, p.6, 7). It is, no doubt, necessary for the
interviewing officer to establish some trust with the
complainant, but interviews that are recorded in the
expectation that the recording may be tendered as evidence under
s.93A of the Evidence Act should concentrate upon relevant and

admissible material. The general likes and dislikes of the

complainants are irrelevant.
Secondly, the opinions which the complainants have about the appellant are not relevant to the proof of the charge. The defence may make an issue of this, but it is only a matter which could affect the credit of the complainant. The purpose of the video recording is to supply something in the nature of the complainant's evidence-in-chief, not unduly to lengthen the hearing, or to prejudice a fair trial.
Thirdly, the complainant should not be encouraged to introduce hearsay by being asked if the appellant had done "that sort of thing to anyone else" (ex. 4, p.6). It is not the case that every word spoken by the police officer and the complainant must be recorded on the video tape which may be tendered as evidence.
Fourthly, the complainants should not be asked to introduce inflammatory evidence by being asked "does any one at school call (the appellant) by any other name?" (ex. 6, p.10).

Fifthly, the complainants should not be asked to speculate about the punishment of the appellant. In ex.5, p.7, one complainant was asked what she thought "should happen to F for doing those things?" The answer was "Someone shoot him in the head". The question introduced an utterly irrelevant issue and the following questions and answers only added confusion because it emerged that that complainant did not like the appellant because he was mean. Although that concept was explored over a page and more of transcript, no clear explanation of what was meant by the word "mean" emerged. It did not seem to refer to any assault the appellant may have committed on that complainant.

There is a proper concern today that people upon whom offences are committed should not be deterred from giving evidence in court against the accused person. However, the concern cannot be allowed to reduce the standard of proof required in a criminal charge. If irrelevant and prejudicial material is included in the video-taped interview with a child under 12 years of age, this may be a strong reason for the rejection of the video tape.

There can be no objection to the interviewing officer ascertaining the nature of the complaint before the video recording is commenced. This will allow relevant questions to be asked. There can be no objection to the asking of general questions at the beginning of the recorded interview so that the child has a fair chance to understand the pattern of question and answer that is used. There is no place for this kind of questioning at the end of the interview as occurred in ex. 4. However, in respect of the allegations which may become the subject of criminal proceedings, the questions should be limited to matters relevant to the proof of guilt.

In this particular case, each complainant under 12 years of age was sworn in, the video tape of the interview was played and then the witness was cross-examined.

The Charges
The charges were laid under s.344(a) of the Criminal Code, namely, that, in each instance, the unlawful assault was an offence of a sexual nature as defined by s.2A of The Criminal Law Amendment Act 1945. The s.2A definition includes any offence committed wholly or partly by an act whereby the offender has exhibited a failure to exercise control over his sexual instincts and any offence in the circumstances associated with the committal whereof the offender has exhibited a failure to exercise such proper control over his sexual instincts. Section 2A also provides that the term "offence of a sexual nature" includes an assault of a sexual nature.
It will be seen that the definition in s.2A of The Criminal
Law Amendment Act involves three different concepts, any one of
which may be an offence of a sexual nature:
1. any offence committed wholly or partly by an act whereby
the offender has exhibited a failure to exercise control over
his sexual instincts;
2. any offence in the circumstances associated with the
committal whereof the offender has exhibited a failure to
exercise such proper control over his sexual instincts;

3. an assault of a sexual nature. It cannot be said that incorporating the s.2A definition

into s.344(a) has produced a clear description of the offence with which the appellant was charged. The Stipendiary Magistrate proceeded on the basis that the alleged circumstance of aggravation was either the first or the second of those enumerated, or possibly both. This meant that an essential part of the proof of the circumstance of aggravation was the assertion that the appellant had failed to exercise control or proper control over his sexual instincts.

If it had been alleged that the circumstances of aggravation was that the assault was an assault of a sexual nature, then no question of the appellant's failure to exercise control over his sexual instincts arose. It goes without saying that to define an offence of a sexual nature as an assault of a sexual nature does not shed much light on the matter. It is even more confusing when the offence charged is an aggravated assault and the circumstance of aggravation is that the offence is of a sexual nature.

There does not seem to have been any request for particulars about which offence of a sexual nature was being alleged. In the course of submissions about separate trials the appellant's solicitor said that he conceded that all the allegations were of a sexual nature (p.31). He then added "the allegations are all of a sexual connotation". That, of course, did not indicate that the issues to be proved included the appellant's control of his sexual instincts. A male who is gratifying lust may do so with full control over his sexual instincts, but he may commit an assault of a sexual nature.

This matter was not argued on the appeal, as it was irrelevant to the appellant's case. The Stipendiary Magistrate had refused to find the circumstances of aggravation, whatever they might be. However, this does further highlight the unsatisfactory nature of the proceedings.

The Magistrate's Decision.
After preliminary remarks including what he had observed of the witnesses, the Stipendiary Magistrate quoted the relevant passage from each complainant's evidence. It will be necessary to return to these in some detail. For present purposes, it is enough to note that generally the allegation involved touching upon the complainants' buttocks.
The Magistrate then said he had no difficulty with the evidence of the young complainants that assaults did occur. He then dealt with the Appellant's evidence and accepted that he touched his students on a regular basis. This included the habit of patting children on the buttocks to encourage them to move in the desired direction to dismiss them and as part of his rapport with his students.

The Stipendiary Magistrate considered the evidence of two of the complainants, two of the three who had not spoken of touching on the buttocks, and then said that he could not be persuaded that the assaults complained of were assaults of a sexual nature. He indicated he was not willing to allow an amendment of the complaints. He rejected the appellant's solicitor's argument about consent, and rejected the idea that the appellant acted under an honest and reasonable belief that consent was given. He considered s.280 of the Criminal Code did not apply, finding that none of the complaints arose from a discipline situation.

He found the appellant guilty of common assault in nine

instances.
The central issue in the appeal is whether a common assault occurs if a teacher touches a child on the buttocks or elsewhere to encourage the child to move in a desired direction. The only specific reference to which Mr Herbert Q.C. directed the court is in the following passage in Law of Consent by Young p.134:
"School teachers
The heading to this section might easily have been pupils

because both the school teacher and the pupil are in a relatively closed system where by reason of their relationship they consent to what goes on as a normal part of the education process. It used to be thought that the school teacher possessed a delegated power from the parent, but more modern thinking suggests that it is the relationship of master and pupil which gives the teacher his authority and by virtue of the existence of the relationship, the pupil impliedly consents to that authority, see Ramsay v. Larsen (1964) 111 C.L.R. 16 at 28-29.

The relation of the parties will accordingly mean that the teacher will from time to time lay hands on the pupil to guide him or her, for instance, as to how to hold a cricket bat properly or to separate pupils in some squabble. The teacher may also enforce the discipline of the school by physical means."

Ramsay v Larsen (supra) concerned the vicarious liability of the Government of New South Wales for the negligence of a school teacher in its service which resulted in injury to a pupil in his class. The passage referred to is found in the judgment of Kitto J. and reads:-

"The doctrine of a delegation of authority by the parent has often been stated as the ground upon which the principle rests that reasonable chastisement of a child by his schoolmaster is justified in law. It necessarily asserts a delegation to the particular person who relies upon the principle as making his action lawful. But the duty to take care of a pupil is not normally the personal duty of the teacher alone. In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a Government or a corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care. The particular teacher, who performs the tasks of care and

tuition in a State school therefore performs them as a civil servant of the Crown and not on his own account only. It may be suggested, with the support of such cases as Hansen v. Cole (1890) 9 N.Z.L.R. 272 and Murdock v. Richards (1954) 1 D.L.R. 766, at p.769, that a school-master's power of reasonable chastisement exists, at least under a system of compulsory education, not by virtue of a delegation by the parent at all, but by virtue of the nature of the relationship of schoolmaster and pupil and the necessity inherent in that relationship of maintaining order in and about the school. But even so, there is no ground for concluding that in the work of teaching and taking care of the pupil in a State school a teacher is acting otherwise than in a capacity which, if the Government were a subject, would be that of a servant acting for his master."

This statement does not clearly say that the pupil impliedly consents to the authority of the teacher.

The question of correction is specifically covered by s.280 of the Criminal Code,	which reads:
"Domestic Discipline

280. It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, towards a child, pupil, or apprentice, under the person's care such force as is reasonable under the circumstances."

The Stipendiary Magistrate ruled that he was not concerned with a discipline situation. It should be noted that, while the heading to s.280 refers to "discipline", the word in the section is "correction". Prior to the amendment of s.14 of the Acts Interpretation Act in 1991, the heading of a section was not part of an Act, and that remains the law in respect of legislation passed prior to 30 June 1991. Certainly, "correction" is often used to connote punishment, but its meaning is not limited to that. As the Shorter Oxford English Dictionary notes, it is derived from the Latin corrigere - "to lead straight, direct." Thus, the first meaning given by that Dictionary is "the action of correcting or setting right." Is that a fair description of what the Stipendiary Magistrate has found that the appellant was doing?

No doubt, in 1899, physical punishment was a common method of correction in schools and in homes. However, the word "correction" cannot be regarded as a kind of legal term of art that must be construed only in terms of physical punishment. Within a school setting, there are many circumstances in which a teacher will properly apply force to a student for the purpose of correcting that student. The example, which Mr Justice Young gave in the passage quoted from his book, of holding the cricket bat, is but one of many that could be given.

Indeed, the concept of discipline within the home and at school is no longer seen as something that is dependent upon physical chastisement. Consequently, neither the heading, if that is significant, nor the words of s. 280 require that that section be given a restricted meaning so that an assault upon a student by a teacher is only justified under s.280 if it is made in the course of chastisement for a breach of school rules. The orderly movement of children within the school buildings is as much a matter where correction may be needed as is the observing of school rules about cheating. Thus, the application of force to the buttocks of a student or upon some other part of the body of a student to encourage movement in a desired direction is justified by s.280, if it is reasonable in the circumstances.

Section 245 of the Criminal Code defines "assault" in very broad terms and s.246 provides that an assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law. Section 280 is one of the sections in the Code which justify assaults and, so upon the construction suggested it would serve to render an assault, committed in the circumstances found by the Stipendiary Magistrate, lawful.

The Individual Offences.
In the following discussion, the complaints are referred to in the same sequence that the Stipendiary Magistrate used in his reasons for judgment. This is not the same sequence in which the complaints are typed out on pp.47, 48 and 49 of the appeal book. In respect of the first complaint the Stipendiary Magistrate said, p.388:

"The evidence of A., on the face of it, is of a reaching under the skirt of complainant. It could well be described as an assault of a sexual nature. However, an examination of her words seemed to indicate an accident which occurred in his touching habit. The words: "and he put it back down with his hand", indicating a readjustment of the child's skirt and accompanied by his expressed regret."

This incident had occurred when the child went up to the appellant's desk in the class room. He was in the habit of putting his arm around the student when this happened. On the findings made on this occasion he "accidentally" reached under the skirt. There was no consideration of s.23 of the Criminal Code which excuses an event which occurs by accident. If the findings mean that when the child came up to the desk the appellant reached out, without looking, and upon realising he had his hand under the skirt, he apologised and took his hand away, then no unlawful assault occurred. A. did not suggest he touched any part of her body only her skirt.

The first complaint, on the findings, should have been

dismissed.
The second and third complaints are ones of touching on the buttocks in the manner previously described. The second occurred on a sports day when a substantial number of children were being organised into events and the third when the student was leaving a class-room. Both of these can be characterised as setting the student in the right direction and so are within the meaning of "correction". Only gentle touching was involved and so both are justified by s.280. These complaints should be dismissed.
The fourth complaint is also within the category of touching buttocks while the student was moving around the class room. Here the findings about the degree of force used are not clear. The particular complainant said she was squeezed on the bottom, but another student in the class described it as an open-handed gentle pushing motion. The rejection of the sexual nature of the assaults should carry with it the rejection of the squeezing of the buttocks. If that is so, this is also an assault justified by s.280. The fifth complaint was discussed more fully by the Stipendiary Magistrate:

"The second complaint of M., where defendant took her by the shoulders, saying 'Hey M.', to use complainant's words: 'Both his hands on my shoulders and he - and goes, 'hey M.' and then rubs and does down.' On hearing and observing complainant, I find I view this interchange as more likely to be a friendly greeting on the part of the defendant. Perhaps a rub to the shoulder and then falling away of his hands when he released them."

This incident was said to have occurred on the top of the stairs into the class room. As it has been found by the Magistrate, it is in the nature of a friendly greeting which involved touching on the shoulders.

The transcript of the video recording of this complaint
includes:
"GHOh so it was before school? Okay and what did he do to

you exactly?

MTHe came around and UI puts his hands down me.
GHPut his hands down you?
MTYeah
GHYou said he put his hands on your chest is that right?
MTYeah then he UI and moved down there
GHHow far down did he put his hand?
MTI just walked off
GHWhere abouts did that happen in the class room?
MTOh near the doorway when you walk in."

G.H. is one of the investigating police officers and his third question seems to have clarified the earlier answer in a way the Stipendiary Magistrate did not accept. In cross-examination, M. agreed that the officer suggested the word "chest". The passage which the Magistrate quoted in the passage above was given in cross-examination. M. had not spoken of touching on the shoulders in the video-recorded interview. She agreed, in cross-examination, that the appellant would touch students on the shoulder, either to congratulate them on something they had done or to direct them to go in a particular direction. The finding is of a friendly greeting.

In respect of this conviction, it cannot be said that the evidence was satisfactory. The evidence quoted from the transcript of the video recording is of a very vague touching which assumed serious significance through the words of the interviewing officer. There was no earlier complaint of the touching of the shoulders. The Stipendiary Magistrate, in dismissing the allegation that this assault was of a sexual nature, disbelieved the allegation in the transcript of the video recording. He placed an innocent interpretation on the gesture, calling it a friendly greeting, and then found the appellant: had committed an unlawful assault.

While there is no basis in the quoted passage from Ramsay v. Larsen (supra) to support the idea that every child required by law to attend school impliedly consents to the exercise of the teacher's authority, there is every reason to accept the concept that a child attending school tacitly consents to receiving from a teacher tactile expressions of encouragement. The traditional pat on the shoulder for a significant achievement falls within this concept. To deny this concept would be to insist that schools become sterile, unemotional and devoid of normal expressions of friendly human interaction.

The description of this touching as a friendly greeting would mean that the touching does not amount to an unlawful assault, such greeting being tacitly consented to. The finding that the assault is unlawful cannot stand.

The sixth and the ninth complaints involve touching on the buttocks together with words to encourage the prompt ascent of stairs. They are justified by s.280 and do not constitute unlawful assaults.

The seventh and eighth complaints present a serious problem. In his recitation of the evidence the Stipendiary Magistrate said:

"J. complained of a touching by defendant. She demonstrated touching of the inside of the right thigh. She has also asserted that this was a squeezing action. There were originally two complaints made by J.. However, as a consequence of her admissions that she thought this had happened but once, one of these complaints was dismissed on completion of the prosecution case. The complaint seems to relate to a time when J. was at the desk of the teacher defendant."

The ruling given at the end of the prosecution case was in

these terms(p.239):
"BENCH: Yes. At this stage I have to determine not whether

the defendant should be convicted but whether he could lawfully be convicted of an offence of assault. Now, I do uphold the argument of Mr Mellick as regards the two complaints of J. on the evidence that it stands that the Court could never be satisfied to the requisite standard that two complaints are proven itself, and I do propose that one of those complaints will be dismissed, and no prima facie case can be found there."

Thus, the ruling is that the complainant was in error in saying that she had been assaulted on two separate occasions when the appellant squeezed the inside of her right thigh. Having rejected the allegation that all of the assaults were of a sexual nature, it is not at all clear where that leaves this particular complainant's evidence. The pattern of the judgment involved the summary of each complaint, the discussion of the appellant's habit, the ruling about the circumstances of aggravation and the discussion of three complaints that did not so clearly fall in the category of "correction". This particular complaint was not discussed, although it most certainly cannot be categorised as correction.

It seems implicit in the Magistrate's finding that he rejected the evidence that the appellant had squeezed the inside of this complainant's thigh, and consequently there is no evidence on which the conviction can be sustained.

The tenth complaint is described by the Stipendiary
Magistrate in these terms:
"The final complainant is a K.. Her complaint differs from

the others in that she made complaint on the day of the alleged offence. K. complained that defendant touched her, it seems, while she was sitting near the computer. That is, at the opposite end of the classroom to the blackboard. In her video interview she states: "in between my legs here and up the side of my bottom and top of my leg".

There is further complaint by K. that she was at the time, lying on a couch known as the sick bed, in the verandah outside the classrooms. She stated that defendant came up to her and placed his hand on her thigh. She gave a demonstration in the Courtroom on the surface of the witness box, of the tips of two fingers and them moving approximately two inches. With this demonstration, it is easy to obtain a minds-eye picture of the action complained of.

It is this complaint that the prosecution seeks to rely on in today's proceedings. This is the only instance complained of which defendant states he has recollection of. He states that it was to feel the temperature of the child, as he thought from her appearance that she appeared pale and cold."

The prosecution relied only on the alleged incident on the sick bed. There had been an earlier conviction in respect of charges arising from this complainant's evidence. The conviction was set aside on the basis that the complainant had given a very different account to a teacher which had not been known by the defence at the summary hearing. So it was that the prosecution relied only on the incident on the sick bed.

The Stipendiary Magistrate said:-

"The complaint of K. involves an allegation of defendant touching her in the area of the groin, though this is not the act relied on by the prosecution. I have viewed and re-viewed the video interview with the child. It shows complainant at times distressed. Her demonstration of what occurred reveals something like a semi flat-handed touch in the area of her lower abdomen, apparently on the outside of her skirt. There is a touch to her buttock as she was leaving defendant.

It is apparent that K. did not relish her interchanges with her teacher. She professes her dislike for school. Defendant describes her as an under-achiever and the impression which came through to me from the video interview is that she finds her own shortcomings in her school work upsetting. Against this background, it is not hard to understand she found defendant's touching habit distressing and no doubt his hand did reach the area complained of. However, I would hesitate to accept that this occurred intentionally or as a result of a sinister motive."

From these findings, the appellant touched the complainant's lower abdomen on the outside of her skirt with his semi-flat hand. That cannot be regarded as correction. It certainly was not an effective way of checking her temperature. It is not easy to understand what the last sentence in the above passage means.

According to the findings, the touching was gentle and for a short duration. The finding seems to be that there was no intention to offend and no sexual overtones. Given the appellant's expressed concern about the complainant's well being, the finding supports the interpretation of this application of force as a gesture intended to encourage a child who was in the sick room. This would then fall within the restricted group of cases to which a child may tacitly consent within the school environment to which reference has already been made. The finding of common assault should not stand.

Since writing the above, I have had the opportunity of reading the draft reasons prepared by the President and McPherson J.A.. It is appropriate that I elaborate on my reasons for asserting that a child attending school tacitly consents to receiving from a teacher tactile expressions of encouragement.

First, I used the word "tacit", meaning "unspoken", rather than "implied", in order to emphasise that this "consent" may be withdrawn by a word or, indeed, a gesture. In other words, I do not suggest that children consent to receiving prolonged or effusive expressions of encouragement. The child must be allowed to respond negatively if that is that child's wish. What is involved in this case are instances of brief, gentle touching without any element of a sexual nature.
Secondly, the kind of "jostling" of which Goff L.J. (as he then was) spoke in Collins v. Wilcock (1984) 1 W.L.R. 1172, at p.1177, will generally fall within the protection of s.23 of the Criminal Code as an event which occurs by accident. Section 24 of the Criminal Code may also apply, in other circumstances, to jostling. In my opinion, there is no need to give "consent" an enlarged meaning to deal with the matters His Lordship raised.

Thirdly, I accept the criticism Lord Goff made of the concept of implied consent being extracted from children, particularly, primary school children. They are required by law to be at school. To imply from their presence at school that they "consent to what goes on as part of a normal part of the education process" invites the comment made by Wilde C.J. in Reg v. Case (1850) 1 Den 580; 169 E.R. 381, at p.582 (382):

"Children who go to the dentist make no resistance; but

they are not consenting parties".
The examples given by Mr Justice Young in Law of Consent,

which have been quoted, generally fall within the concept of "correction" which I have referred to. In other words, s.280 of the Criminal Code justifies the use by a school master of reasonable force by way of correction. I should add that, in my opinion, "school master" should bear a broad meaning to cover any person employed by the school authorities to maintain the school as an educational community. It should not be interpreted so that a "teacher" may lawfully guide a child's hand in teaching writing or drawing, but a "teacher's aide" may not.
Fourthly, while the Criminal Code must be construed according to its terms, so that it is not legitimate to look at the antecedent law, the Criminal Code is not "an island, entire of itself". It is "a piece of the continent, part of the main", that is, part of the general law. Thus when the Criminal Code uses the word "unlawful", that does not confine the issue within the limits of the Criminal Code itself. For example, the Vagrants, Gaming and Other Offences Act 1931, is to be read and construed as an amendment of the Criminal Code, (s. 52(1)), and that Act authorises assaults involved in the search of a suspect (s. 24) and in the taking of fingerprints (s. 43(2)). The Drugs Misuse Act 1986, by s.17, authorises assaults committed in the search for dangerous drugs.

In a very different context, the Transplantation and Anatomy Act, 1979, permits a number of medical and surgical procedures not covered by s.282 of the Criminal Code because they are not for the benefit of the donor on whom they are performed, but for the benefit of another person. In my opinion, it is inconceivable that before that latter Act was passed an attendant at the Blood Bank, who wounded a blood donor by piercing the donor's true skin with a needle, was guilty of unlawful wounding. Indeed, in my opinion, there was no unlawful wounding because informed consent has been given to an established medical procedure. In such circumstances no civil action lay, in the days before the AIDS virus caused concern, and, even more so, no criminal offence was committed. In other words, informed consent made the wounding lawful. Similarly, the grievous bodily harm done in removing a healthy kidney for transplanting was lawful because of the informed consent of the donor.

Again in a different context, the authority given to an occupier of land under s.68 of the Fire Service Act 1990 may justify the setting fire to crops and plants in the course of controlling a fire. This would otherwise be an offence under s.463 of the Criminal Code. In other words, in my opinion, s.68 of the Fire Service Act 1990, if its terms are complied with, justifies the damage caused by back burning.

Fifthly, it is in this broad area of the statutory justification of acts which are otherwise unlawful that I would place the concept of the school child's tacit consent to receiving tactile expressions of encouragement. Section 24 of the Education Act 1964 speaks of progressive primary education which has regard to the age, ability and aptitude of the child concerned. Section 12 of the Education (General Provisions) Act 1989 speaks of a program of instruction that has regard to the age, ability, aptitude and development of the child concerned and which takes account and promotes continuity of the student's learning experiences. While neither Act defines the role of a teacher in the provision of this education or instruction, ordinary commonsense requires that children be encouraged in the process of learning. That is fundamental to the learning process. Tactile expressions of encouragement are not essential but they are a common form of human expression. So, in my opinion, it is consistent with the aims of the statutory scheme for primary education to allow as justification for the appropriate, non-sexual touching of a student by a teacher, the student's tacit consent to receiving encouragement.

The appeal should be allowed. The findings that the appellant was guilty of common assault are set aside and in respect of each charge enter judgment of acquittal.