Lumb v Police

Case [2008] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

LUMB v POLICE

[2008] SASC 198

Judgment of The Honourable Justice David

18 July 2008

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - GENERALLY

CRIMINAL LAW - EVIDENCE - RELEVANCE - GENERALLY

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - CONVICTIONS - NECESSITY TO FOLLOW OR BE SUPPORTED BY EVIDENCE

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - MATTERS RELATING TO DECISION

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - DUPLICITY AND UNCERTAINTY - IN GENERAL AND POWER OF AMENDMENT

Appellant found guilty by magistrate of assault upon a four year old child in the course of her employment at a childcare centre - two prosecution eyewitnesses gave evidence - defence made a submission of no case to answer and sought a Prasad direction - both applications were refused - defence did not elect to call any evidence - whether magistrate provided adequate reasons as to differences in evidence and findings of fact - magistrate preferred version of one witness in certain respects and gave adequate reasons - findings of fact were supported by the evidence and sufficient for a conviction - whether magistrate properly considered the defence of lawful chastisement by a person acting in loco parentis - magistrate applied defence and correctly found it disproved regardless of whether appellant was acting in loco parentis, as chastisement by appellant was not reasonable - whether the magistrate relied upon irrelevant considerations and opinion - considerations and opinion relevant to the defence of reasonable chastisement and prosecution case nonetheless made out - whether allegation was adequately particularised - discrepancies between evidence of eyewitnesses - specific date was not neccesary - evidence of eyewitnesses sufficiently similar to conclude that they were describing the same incident.

Held: Appeal against a finding of guilt dismissed.

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - OTHER MATTERS

Appellant found guilty by magistrate of assault upon a four year old child in the course of her employment at a childcare centre - magistrate found appellant guilty and after recording a conviction, released the appellant on condition that she enter into a bond in the sum $500 to be of good behaviour for a period of two years - whether plea of not guilty and finding of guilt following trial to be taken into account in considering the exercise of the discretion not to record a conviction - magistrate applied the wrong criteria - plea of not guilty and finding of guilt following trial does not preclude operation of either s 16 or s 39 of the Criminal Law (Sentencing) Act 1988 (SA).

Held: Appeal against sentence allowed, appellant resentenced.

Criminal Law Consolidation Act 1935 (SA) s 39; Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1935 (SA)…

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Details
AGLC
Lumb v Police [2008] SASC 198
Case
[2008] SASC 198
Decision Date

CaseChat Overview and Summary

The appellant, Ms. Lumb, appeals her conviction and sentence for the assault of a four-year-old child, referred to as "C," in her capacity as a team leader at a childcare centre. The primary evidence against Ms. Lumb came from two eyewitnesses, Ms. F and Mr. W, who observed the incident where Ms. Lumb allegedly picked up and threw the child, causing her to land on her bottom and legs. Ms. Lumb faced charges of assault, and the central legal issues were whether the magistrate adequately considered the defence of lawful chastisement by a person acting in loco parentis, whether the magistrate provided sufficient reasons for their findings of fact, and if the magistrate relied on irrelevant considerations in arriving at the decision.

The court found that the magistrate provided adequate reasons for preferring the version of one witness over the other in certain respects, and the findings of fact were supported by the evidence and sufficient for a conviction. The court also determined that the magistrate correctly applied the defence of lawful chastisement by a person acting in loco parentis and found it disproved, regardless of whether Ms. Lumb was acting in loco parentis, as the chastisement by Ms. Lumb was not reasonable. The court held that the magistrate's considerations and opinions, while relevant to the defence of reasonable chastisement and the prosecution case, did not lead to an improper outcome. The discrepancies between the eyewitness accounts did not undermine the magistrate's ability to conclude that both were describing the same incident.

The court dismissed the appeal against conviction, finding that the magistrate's reasoning and findings were sound. However, the court allowed the appeal against sentence, quashing the sentence imposed by the magistrate and imposing a fine of $250 without recording a conviction. The court noted the appellant's age, previous good character, and the nature of the offending as mitigating factors, and concluded that it was unlikely the appellant would commit such an offence again.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals on the grounds that the magistrate erred in finding the appellant guilty of the charge and erred in recording a conviction on sentence.Background Facts and Evidence at Trial At the outset I note that an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) is an appeal by way of rehearing. I am required to make an independent assessment of the evidence, having due regard to the advantages the magistrate had in observing the witnesses give their evidence. The alleged victim, whom I will refer to as “C”, was a child aged four years at the relevant time. The appellant was the “team leader” (the more senior of two child care workers) employed in the “kindy room” of a childcare centre. During the course of her employment, and on the particular day in question, the appellant and her colleague in the kindy room were responsible for C’s care. The prosecution called four witnesses at trial, but relied primarily on the evidence of two eyewitnesses, namely, Ms F and Mr W. These two eyewitnesses were the more junior childcare workers in their respective “rooms” at the centre.Prosecution Witness Ms F Ms F gave evidence that on the day of the alleged assault she and the appellant were working in adjoining rooms at the childcare centre. Ms F worked in the “junior kindy room” with her team leader, Ms D. She said that Mr W worked with the appellant in the “kindy room”. The two “rooms” comprised of a large open area, which could be divided with bi-folding doors. These doors would be opened about fifty per cent of the time, whenever the two groups joined for activities, such as afternoon tea. The two groups also shared a back yard. There were two doors leading to the back yard, one from the junior kindy room and one from the kindy room. This allowed access to the back yard from either room when the bi-fold doors were closed. There was also a verandah. Although she had only looked after C when relieving in the kindy room, from her general observations, Ms F described her as “an easy going kid, [who] just liked general girly stuff and got along well with most of the children”. Ms F said that when it was time for afternoon tea on the day of the alleged offence, all of the doors were open and the two rooms were opened out to the one large area. The children were outside, and she went out to bring her group in for afternoon tea. She said that when all of the children, except a few from her group were inside, she noticed C sitting on a couch, located outside under the verandah, near the entry to the kindy side of the large room. She said that the appellant told C to come inside, but she would not move. Ms F said she did not think that C was saying anything at that stage, but may have been crying. Ms F also said:[1][1] Trial transcript, SA Police v Lumb (Magistrates Court of SA, Magistrate Deland, 26 February 2008), Ms F XN, p 9 lines 2-8.I remember her kind of sitting on the couch and then she’s kind of, like, sitting there and [the appellant] went to pull her up and then she’s just throwing a tantrum and not wanting to stand up and you know as a child would you go to get it up and then they just fall themselves back down to the ground, that’s what she was doing.Ms F said that several minutes later, when she was back inside the premises dealing with the children in her group, she could hear that C “was still screaming and [the appellant was] yelling at her to get up”.[2] She gave evidence that she then went outside again through the junior kindy door[3] and saw that C was now a distance of four or five metres from the couch, and a step or so away from the bark chip area of the yard. Ms F then said:[4][2] Trial TX, Ms F XN, p 10 lines 6-7.[3] Trial TX, Ms F XN, p 11 line 12.[4] Trial TX, Ms F XN, p 10 lines 9‑12; 14-15.I saw [the appellant] pick [C] up under her arms and kind of throw her, swing her into the air, so then [C] would fall onto her bottom and legs, and I saw that happen twice, but … I think it would’ve happened more than twice.Ms F was later asked:[5][5] Trial TX, Ms F XN, p 12 lines 18-28.Q.[Y]ou’ve told us you first saw this as you walked out. Now, can you be specific about where and how there was contact between [the appellant] and [C]?A.I just saw [the appellant] pick up [C] under the arm – she either had her under the arms or was holding the top of her arms and then she kind of swung her as she threw her into the air and then [C] fell to the ground.Q.Now either under the arms or on top of the arms, was [the appellant] using one or two hands to do that?A.Both hands.Ms F said that when the appellant picked C up, she refused to put her feet down, let her body go “droopy, [and was] not holding herself up at all”.[6] The appellant picked C up and moved her using: [7]a swinging throw action because obviously [the appellant’s] not going to be able to pick up a kid and just throw her, but it’s more like a swing and a throw ...Ms F then said:[8]And then [the appellant] picked [C] up again and did it again and the exact same thing, the swinging motion and that, and [C] fell again.Ms F said the appellant threw C in this swinging motion from a height of approximately a foot and a half to two feet,[9] with C landing a metre and a half to two metres away from the appellant,[10] further towards the back fence. Ms F said she did not hear the appellant telling C to put her feet on the ground,[11] nor would she have been able to stand up while being swung in the air by the appellant.[12] She also said:[13]I remember her picking her up and swinging her in the air and her landing. She’s either landed on her bottom, on her legs. She hasn’t landed in an okay manner at all. It would have hurt her and she was crying throughout.Ms F said that the second time the appellant performed the action, C landed on her bottom and legs on a grassed area, which had a wooden seat nearby.[6] Trial TX, Ms F XN, p 12 line 38.[7] Trial TX, Ms F XN, p 13 lines 13‑16.[8] Trial TX, Ms F XN, p 14 lines 1-3.[9] Trial TX, Ms F XXN, p 21 lines 8-9.[10] Trial TX, Ms F XN, p 13 lines 23‑24.[11] Trial TX, Ms F XN, p 20 lines 32-33.[12] Trial TX, Ms F XXN, p 21 lines 9-12.[13] Trial TX, Ms F XXN, p 22 lines 27-31.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J
Because of the appellant’s age, previous good character and record and the nature of this offending, I find that it is unlikely that the she would commit such an offence again. In my view, the appropriate penalty is the imposition of a fine of $250 without recording a conviction.Conclusion I dismiss the appeal against conviction. I allow the appeal against sentence and quash the sentence imposed by the magistrate. On resentencing, the appellant is fined $250, and pursuant to s 16 of the Sentencing Act, no conviction is recorded.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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