Lumb v Police - [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) s 16, s 39, referred to.
R v Kinloch (1996) 187 LSJS 124; R v Power (2003) 141 A Crim R 203, applied.
R v Keyte (2000) 78 SASR 68, discussed.
Cleary v Booth [1893] 1 QB 465; Coghlan v Police [2007] SASC 312 (Unreported, Sulan J, 23 August 2007); Hemming v Mundy (2001) 122 A Crim R 329; Hyde v Police (2006) 167 A Crim R 185; Johnson v Miller (1937) 59 CLR 467; Mansell v Griffin (1908) 1 KB 160; R v Terry [1955] VLR 114; WGC v The Queen (2007) 82 ALJR 220, considered.

LUMB v POLICE
[2008] SASC 198
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against both conviction and sentence.
The appellant was charged on a Complaint, which alleged that on 6 July 2005 she assaulted a child, contrary to s 39 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) as enacted at the time of the offence. The Complaint was amended at trial to allege that the offending occurred between 31 May 2005 and 1 July 2005.
During the relevant period, the appellant was employed as a childcare worker. The charge arose out of an incident in which it was alleged the appellant assaulted a child in her care. The magistrate found that the appellant picked up and dropped the child to the ground from a height of about eighteen inches to two feet in a manner which caused the child to land forcefully. It was alleged that the appellant picked up and dropped the child in the same manner at least twice.
The appellant pleaded not guilty and the matter proceeded to trial. The prosecution called four witnesses, two of whom claimed to have seen the incident. At the close of the prosecution case, the defence made a submission of no case to answer and sought a Prasad direction. Both applications were refused and the defence did not elect to call any evidence. The magistrate found the appellant guilty, and after recording a conviction, released her on condition that she enter into a bond to be of good behaviour for two years in the sum of $500.
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.
Ms F then approached the appellant, who said words to the effect that C was not listening to her and that Ms F should deal with her. C was crying and had “hopped” onto the wooden seat as the appellant was walking away. Ms F then asked C whether she wanted to go inside for afternoon tea. C agreed, held her hand and went in. She checked to see whether C was hurt, but “she seemed fine”.
Ms F gave evidence that the staff spoke about the incident later in the day. Someone asked the appellant what she would have done had one of the other staff treated her daughter, who was also cared for at the centre, in the same way. The appellant said that she would not care if her child were misbehaving.
In cross‑examination, Ms F said she had never been in a situation where a co‑worker needed assistance in dealing with a particular child. She said usually “whoever’s dealing with the child has managed to deal with their behaviour appropriately”[14] by simply talking to the child. Ms F said as soon as she heard C screaming and saw her being thrown, she thought what was happening was wrong. She said she reported the incident to the director of the childcare centre the day, or day after, it had occurred, and they then notified the local Council.
[14] Trial TX, Ms F XXN, p 24 lines 3-5.
Ms F finished working at the childcare centre in September 2005, and made a statement to the investigating police officer, in November 2005. In cross‑examination she was asked:[15]
Q.Why do you say this incident occurred on 6 June 2005, or do you know the date this occurred?
A.I don’t remember it, but if you said that is the date, it must have been the date, but the date I had in my statement was the day it happened and it was in June. I remember it was the start of June.
…
Q.I suggest to you that this incident, or nothing like it, occurred on 6 June 2005, what do you say to that?
A.I would say that that is not true. I don’t know the exact date but I know the incident occurred in June, early June sometime.
[15] Trial TX, Ms F XXN, p 25 lines 1-13.
Ms F was questioned about her reporting obligations. She said she telephoned Family and Youth Services but the police had already notified them.
Prosecution Witness Mr W
Mr W also gave evidence about the alleged offence. He had been employed at the childcare centre for about four years and worked with the appellant in the kindy room. The appellant was the team leader in the room.
Mr W said that at the relevant time C was being cared for in the kindy room. He described C as “just like any other child [who has] their moments”.[16] Mr W remembered that at the time the incident occurred there was some friction between the appellant and C.[17] At the appellant’s initiative, they had programmed specific activities to deal with the issue of C’s “anger management”. He said C sometimes got upset like other children, but he himself did not think she had anger management problems.[18] Mr W said he did not challenge the appellant over her opinion about the need to manage C’s anger, because she was more senior, had a lot more experience in childcare, and with children in general, than he did.[19]
[16] Trial TX, Mr W XN, p 35 lines 7-8.
[17] Trial TX, Mr W XN, p 40 lines 7-8.
[18] Trial TX, Mr W XN, p 40 lines 20-24.
[19] Trial TX, Mr W REXN, p 58 lines 23-25.
Mr W gave evidence that on the day of the alleged offending he and the appellant had been bringing the kindy children inside for afternoon tea and getting them into a circle to eat fruit. For some reason, C, who was leaning against the inside of the back door, did not want to join the circle. Mr W was asked:[20]
[20] Trial TX, Mr W XXN, p 49 lines 34‑38 to p 50 line 1.
Q.Was she just being stubborn and sitting out at the entrance or was she crying or screaming or making any noises?
A.I think she was just being stubborn. At the first instance she just – yes, didn’t want to join us in the circle.
Mr W said:[21]
[21] Trial TX, Mr W XXN, p 53 lines 12‑15.
[The appellant] got increasingly frustrated with [C] and yes, she said that if [C] didn’t want to join us in the circle then she could go outside.
Mr W gave evidence that the appellant asked C to join them more than once, and she refused. He said:[22]
[22] Trial TX, Mr W XN, p 35 lines 19-29.
[The appellant] probably would have asked her, I can’t remember, she would have asked her a few times to join us in the circle and she didn’t. [The appellant] got increasingly annoyed with that and after several times asking her to join us walked over and picked [C] up by her arm. Walked her outside the door, out into the yard and walked outside .[C] was crying. [C] was upset. We were trying to get her to stand up but [C] had her legs in the air, wouldn’t put her feet down, so [the appellant] had to lift her up and kind of drag her outside.
Mr W later repeated:[23]
[23] Trial TX, Mr W XN, p 37 lines 17-21.
[The appellant] picked her up by her arm and [C] resisted by picking her feet up. She didn’t want to stand up, so [the appellant] had to forcibly drag her outside. Sometimes [C] was completely suspended, held off the ground. She just dragged her outside basically.
When asked in cross-examination Mr W confirmed:[24]
[24] Trial TX, Mr W XXN, p 52 lines 28-29.
Q.How did [the appellant] pick her up?
A.    [The appellant] picked up [C] by one of [C’s] arms.
Also, when he was asked in cross-examination:[25]
[25] Trial TX, Mr W XXN, p 54 lines 15-22.
Q.Did [the appellant] pick her up to get her to stand up when she was on this soft bark.
A.Yes she did.
Q.How did she do that, how did she pick her up.
A.The same way that she picked her up inside.
Q.Both – [the appellant] using one arm to pick up [C] by one arm.
A.    Yes.
Mr W also said in cross-examination:[26]
[26] Trial TX, Mr W XXN, p 54 lines 28-33.
Q.You say in your statement that at some stage she may have got about 18 inches off the ground?
A.Yes, she lifted her clear off the ground.
Q.But if her feet were to drop and solid, not jelly, her feet would have been able to stand on the ground?
A.    She would have been able to stand up, yes.
Mr W was asked in cross-examination about how C was reacting at this stage:[27]
Q.Was [C] getting more stubborn and more upset?
A.Yes she was, with the physical-ness of it. Yes, [C] was getting upset, with the physical side of the whole thing.
[27] Trial TX, Mr W XXN, p 55 lines 14‑17.
Mr W said that he observed the appellant speak to C when they were outside on the bark, but could not hear the conversation from where he was inside. Although he had an unobstructed view, he was:[28]
not quite sure what [the appellant] said to her but she said something to [C] and while she was holding her up in the air she dropped her, like she let her fall onto the bark and she was still talking to [C] and she picked her up again and dropped her again.
[28] Trial TX, Mr W XN, p 38 lines 5-9.
Mr W said he had been watching the appellant and C the whole time from when the appellant took her outside to when the appellant dropped her in the bark chip area. He was asked whether he could hear or see C say or do anything after she was dropped the second time, and he answered as follows:[29]
[29] Trial TX, Mr W XN, p 38 lines 16-23.
A.No, she was limp basically. She was upset and she was refusing to put her feet down.
Q.When you say she was upset, was there anything about her behaviour that told you that?
A.She was crying at the time.
Q.You just described a similar sort of motion twice, is that what you’re telling us.
A.Yes.
Mr W was asked:[30]
Q.Did anything else happen after that you can recall?
A.[The appellant] picked her up another time and dragged her again down to the back fence which is about 10 m from the bark chip area, right down to the back fence of the yard.
Mr W said there was nothing there, except a little bit of grass and dirt. He said the appellant then returned inside, and Ms F, who had also seen the incident, went outside to check on C. He himself did not check whether C was injured.
[30] Trial TX, Mr W XN, p 38 lines 24-29.

Although Mr W was unable to remember the exact date of the incident, with reference to the “kindy” programs he and the appellant had prepared, he believed the incident was in June 2005, when he was working with the appellant. He could only remember one incident like the one he described.
Mr W was asked about his reasons for not reporting the alleged offence:[31]
A.Just being the - having no qualifications I just wasn’t aware if avenues to take and yes, I did nothing about it, basically.
Q.I suggest that’s because there wasn’t an incident, in your mind.
A.It was an incident, it definitely was an incident.
Q.Nothing that required intervention.
A.I just did nothing about it. I’m not saying that it didn’t require intervention, I just did nothing about it.
[31] Trial TX, Mr W XXN, p 57 lines 24‑35.
Mr W was also asked about his reaction to the incident:[32]
[32] Trial TX, Mr W REXN, p 59 lines 1-18.
A.I disagreed with the way that [the appellant] handled the whole situation.
Q.What specifically if anything did you agree [sic] with?
A.Getting physical with [C] picking her up and dropping her and repeatedly doing it.
Q.You said in evidence under cross-examination that you noticed that [the appellant] was getting increasingly frustrated?
A.Just the tone in which she spoke to [C] and then yes, getting physical with her.
Q.You also said under cross-examination that [C] was getting upset with the physical side of it?
A.Being picked up against her will, obviously, and yes, being dropped, being dragged outside.
Mr W said that had he been in the appellant’s place in having to deal with C, he would not have picked her up in the first place.
The Grounds of Appeal Against Conviction
Grounds 1 and 2
1.The learned trial magistrate failed to provide adequate reasons in that she:
(a) failed to reconcile differences in the evidence; and
(b) failed to make findings of fact which were sufficient to identify a basis upon which the appellant could have been convicted.
2.The learned trial magistrate made findings of fact that were contrary to, or not supported by, the evidence.
Mr Anders, for the appellant, argues that there was such a discrepancy between the evidence of the two prosecution eyewitnesses regarding the circumstances and the manner in which C was moved, that in order to properly exclude a factual basis consistent with innocence, those discrepancies should have in some way been reconciled through findings by the magistrate.
In the magistrate’s ruling at the close of the prosecution case on the Prasad direction, she stated:[33]
In this case it is submitted the evidence of [Ms F] and [Mr W] is so much at odds that I could not in any event be convinced beyond reasonable doubt that the charge is made out. I have already noted there are discrepancies between the evidence of the two persons; the prosecution have pointed out they were looking at the incident from different vantage points and therefore that it is most likely their evidence would not in fact be consistent. I can, in determining whether or not an offence is made out, take into account all of the evidence given by a witness, some of it, and indeed reject all of the evidence of a given witness. In those circumstances I consider in this particular case it is not appropriate to dismiss the matter as per Prasad.
[33] Ruling, SA Police v Lumb (Magistrates Court of SA, Magistrate Deland, 26 February 2008).
In her reasons, the magistrate said:[34]
I am satisfied beyond reasonable doubt the defendant approached [C] when the child would not move inside to join the group. … Both witnesses say [Ms F] retrieved [C] from near the back fence and brought her inside. They both say [C] was crying and the [appellant] was getting frustrated with her. Both [Ms F] and [Mr W] have given evidence they did not believe it was appropriate to deal with the child in this way. There are significant discrepancies in the evidence of these two witnesses as to the manner in which the child was moved … I have considered in particular the discrepancies in the evidence of [Ms F] and [Mr W] and whilst I consider them significant, I do not accept their evidence is so much at odds they could not be describing the same incident. I consider they have each given evidence honestly and to the best of their ability about the incident.
I am satisfied beyond reasonable doubt the defendant grabbed [C] roughly and carried her by either one or two arms with her legs off the ground. I am satisfied the defendant dropped [C] to the ground from a height of about 18 inches to 2 feet in a manner which caused the child to land forcefully. The fact [C] could [or could] not put her legs down I consider is irrelevant, it is the manner in which the defendant treated the child which is relevant to the charge of assault. The defendant’s actions were not appropriate in the circumstances. She was under an obligation to provide care and supervision to the child.
[34] Judgment (ex tempore), SA Police v Lumb (Magistrates Court of SA, Magistrate Deland, 26 February 2008), [18]-[19].
Mr Stratton-Smith, for the respondent, submits that the evidence of the two witnesses was largely consistent and any differences can be explained by the different vantage points they had in observing the incident. He submits that the facts, as found by the magistrate, were open on the evidence and sufficient to establish the offence and disprove the defence advanced by the appellant.
Mr Anders submits that the limited findings of fact made by the magistrate in the above passage do not reflect the version of either eyewitness – rather they reflect a hybrid of both versions. However, having found both witnesses to be honest, in my view, it is clear that the basis upon which the magistrate found the appellant guilty of the charge is more closely aligned to that described by Mr W.
As a trier of fact, the magistrate was quite entitled to prefer the version of one prosecution witness to that of another. She has found quite clearly that they were honest in giving their evidence to the best of their ability. The magistrate obviously preferred the description of the incident given by Mr W to that given by Ms F, and the basis of fact upon which she rejected the defence and convicted the appellant was that the appellant dropped C to the ground from a height of eighteen inches to two feet on two occasions. The fact that the magistrate did not find for the more extreme view - that she was swung and dropped to the ground, as described by Ms F - in my view, does not affect the validity of her conclusion. No prejudice can be afforded to the appellant for not giving evidence, and that fact cannot be used to support the prosecution case. Nevertheless, no contrary version was put to the Court than that of the evidence given by Ms F and Mr W.
In R vPower[35] Perry J considered the extent to which reasons are required to explain the decision to prefer one witness to another. He noted the following comments of Doyle CJ in R v Keyte,[36] regarding the extent of the obligation upon a judge sitting alone to give reasons in such circumstances:[37]
I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.
[35] (2003) 141 A Crim R 203.
[36] (2000) 78 SASR 68.
[37] Ibid 81.
Perry J also noted, relevantly to this case, that there is a difference between honesty and reliability.[38] He also concluded that “there will sometimes be cases where very little can be given by way of an explanation for preferring one witness to another” and that the case then before him was “one such case”.[39]
[38] R v Power (2003) 141 A Crim R 203, 211.
[39] Ibid 211.
In Coghlan v Police[40] Sulan J considered the adequacy of a magistrate’s reasons in preferring one witness to another. In that case the prosecution and defence evidence was in stark contrast as to the commission of the offence, and the magistrate had made irreconcilable comments as to the credibility of the defence witnesses in the course of his reasons. He concluded that the case was not “in the same category as Power, where the trial judge had unambiguously rejected the evidence of the defendant based on his impression of him…”.[41]
[40] [2007] SASC 312 (Unreported, Sulan J, 23 August 2007).
[41] Ibid [30].
In this case, the magistrate found that although there were inconsistencies between the evidence of Ms F and Mr W, there were also consistencies sufficient for her to conclude that the witnesses were “describing the same incident”. Since she found both witnesses to be honest, it is implicit that her preference for Mr W’s evidence, and description of certain aspects of the alleged incident, stemmed from her assessment of its reliability. She was not required to provide a detailed explanation as to why she preferred his evidence, nor for her conclusion of guilt beyond reasonable doubt on the basis of his evidence. Her preference for his evidence unambiguously rested on her impression of it.
Mr Anders further argues that the charge of assault is not made out, because on Mr W’s version, there may gave been an assumption on the part of the appellant that C was going to land on her feet when dropped. Mr Anders argues that if this were a possibility, then there would be no intention on the part of the appellant to assault C. In the magistrate’s reasons above, she states that whether or not the child could put her legs down was irrelevant to the charge of assault. In finding that to be so, Mr Anders argues that the magistrate has erred.
If C was dropped only once, there might be some force in what Mr Anders argues. However, the facts, as found by the magistrate, are that C was dropped twice. It is clear that the magistrate found that after having dropped C on at least one occasion, the appellant knew that C would not, or could not, find her feet.
The magistrate provided adequate reasons. Her conclusions of fact were open on the evidence and were sufficient to make out the offence.
I reject both grounds of appeal.
Grounds 3 and 4
3.That the learned trial magistrate failed to properly consider the defence of lawful correction of a child.
4.That the learned trial magistrate erred in assessing the nature of the relationship which existed between the appellant and the complainant.
Mr Anders submits that the magistrate erred in law by holding that corporal punishment by child carers could not be considered lawful and erred in fact by holding that the defence was disproved.
In the magistrate’s ruling on the defence submission of no case to answer, she stated:[42]
[42] Ruling, SA Police v Lumb (Magistrates Court of SA, Magistrate Deland, 26 February 2008).
It has been argued the force which was used by the defendant was reasonable in the circumstances to control the child.
There is old authority with respect to school teachers and the position they hold with respect to a child. A school teacher is in a situation where they must discipline and control children within their class or within a school. A parent is under a statutory obligation to send a child to school. The Common Law has accepted that a school teacher therefore has a right to discipline the child …
A carer however is in a different situation, a child carer is under a contractual obligation to look after a child. I have not had presented to me the contract as between the [child care centre] and the parents of this child, however, I consider there are probably clauses within that contract which relate to the manner in which the child should be dealt. In today’s society, I consider generally physical correction of the child would not be acceptable. In any event at its highest a carer could not do anything more than that which is objectively reasonable. A carer could not exceed such force as would be reasonably necessary to protect the child and other children, for example, by physically removing a child, if she hit another child or was at risk of hurting herself. Generally it would be acceptable that reasonable force could be utilised in order to remove the child from the situation.
If I was satisfied [with the Crown case taken its highest] then I consider that that would be an excessive use of force.
In her reasons, the magistrate stated:[43]
The defence and prosecution have both attempted to obtain authorities with respect to the legal position of a person who is employed as a child carer. Likewise I have also endeavoured to find such authorities. There is very little case law and none which appears to give any indication as to the use of physical actions by a child carer with a child. There is nothing which gives any indication as to the legal standing of a child carer as regards disciplining of a child. I have already addressed these matters in ruling there was a case to answer and I adopt what I said at that stage.
… Both [Ms F] and [Mr W] have given evidence they did not believe it was appropriate to deal with the child in this way …
… The defendant’s actions were not appropriate in the circumstances. She was under an obligation to provide care and supervision to the child.
Were the defendant’s actions unlawful? The defence have argued the defendant was in a position of a parent at the time of her actions and therefore any reasonable physical force would be lawful. The authorities, such as they are, are unclear as to the legal standing of a child carer. Whilst many people still hold the view that corporal punishment by parents is acceptable I do not believe that legally corporal punishment by child carers would be considered to be appropriate or lawful. In the current case the defendant’s actions were not necessary in order to place the child into the circle of children where she was meant to be. From the evidence before me it was her intention in fact to seclude her from the group apparently only as a punishment for her attitude. Her actions were not such that I consider that they can be considered a reasonable use of force in the circumstances and therefore are unlawful. I am satisfied beyond reasonable doubt that the offence has been made out and I find the defendant guilty as charged.
[43] Judgment (ex tempore), SA Police v Lumb (Magistrates Court of SA, Magistrate Deland, 26 February 2008), [17]-[20].
There is very little recent authority regarding the lawful correction or chastisement of a child operating as a defence to a charge of assault. The principles governing the defence were set out in the case of R v Terry,[44] where Sholl J stated:[45]
[44] [1995] VLR 114.
[45] Ibid 116.
A parent has a lawful right to inflict reasonable and moderate corporal punishment on his or her child for the purpose of correcting the child in wrong behaviour, but there are exceedingly strict limits to that right. 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…So also a person duly authorized by a parent may act in his or her place…
Those principles were confirmed by this Court in R v Kinloch[46] where Lander J said:[47]
The common law permits a parent to chastise his or her child. A parent may chastise his or her child “in a reasonable manner; for this is for the benefit of his education” (Blackstone Commentaries on the Laws of England, 1825 reprint of the 1783 Ed. at 452‑453). The circumstances in which that chastisement might take place were said to arise “for the purpose of correcting what is evil in the child” (R v Hopley (1860) 2 F & F 202; 175 ER 1024); and for “wrong behaviour” (R v Terry (1955) VLR 114).
…
Moreover, the law recognizes that if the circumstances for correction arise, the punishment must be moderate and reasonable. It cannot be administered “for the gratification of passion or rage” (R v Hopley (supra)).
If the punishment is immoderate or excessive, or if it is administered for reasons unconnected with the purposes mentioned above, then the punishment is unlawful.
…
In R v Terry (supra), Sholl J, in charging a jury, said that the punishment must be “carried out with a reasonable means or instrument”.
Lander J then went on to consider the facts in Kinloch and concluded that regardless of whether the child’s aunt was in fact acting in loco parentis, the defence would not have had any application. The nine year old child, who had had difficulty with reading, had not misbehaved so as to warrant the injury inflicted, the severity of the injury inflicted, namely prolonged hitting, nor the use of the instrument, namely a horse whip, with which the injury was inflicted. The chastisement simply could not be said to have been moderate or reasonable.
[46] (1996) 187 LSJS 124 (“Kinloch”).
[47] Ibid 130.
If such a defence still exists in the circumstances of the appellant’s conduct, there is no clear authority as to whether such a defence can be relied upon by a child carer. In Cleary v Booth[48] it was held that a schoolmaster is in the position of a parent and a parent delegates to the schoolmaster certain powers including that of disciplining the child for misbehaviour on the way to school. Collins J stated that if it were otherwise:[49]
Not only would such a position be unworkable in itself, but the Code, which has the force of an Act of Parliament, clearly contemplates that the duties of the master to his pupils are not limited to teaching. A grant may be made for discipline and organization, and it is clear that he is entrusted with the moral training and conduct of his pupils … if the schoolmaster has no control over the boys in their relation to each other except when they are within the school walls, this object of the Code would be defeated … In my opinion parents do contemplate such an exercise of authority by the schoolmaster.
[48] [1893] 1 QB 465.
[49] Ibid, 469.
This was confirmed in Mansell v Griffin[50] where, despite regulations prohibiting assistant teachers from inflicting corporal punishment, the Court held:[51]
it has from the earliest times been the practice for teachers to enforce discipline by some form of coercion. Even if a parent put one child under the personal supervision of a tutor for that child alone, he must expect, unless he specially restrains the tutor, that the tutor will on some occasions administer some form of personal correction to the child …
[50] (1908) 1 KB 160.
[51] Ibid 166.
Even if the defence of lawful chastisement can nevertheless apply to a child carer, the magistrate’s finding that it was disproved in this case, in my view, was correct. The magistrate found that in dealing with C’s refusal to join the rest of the children, the appellant became frustrated and the force she consequently applied to C was not reasonable and was therefore unlawful. I agree with the finding of the magistrate, bearing in mind the age of the child, the behaviour sought to be addressed, namely C’s movement, the nature of the admonition and the appellant’s behaviour, namely, picking up and dropping C to the ground twice. I agree with the magistrate that this cannot be considered to be reasonable.
In the light of that finding, it is unnecessary to determine the appellant’s argument that a child carer acts in loco parentis when looking after a child. I find the magistrate’s view of the appellant’s behaviour as unreasonable is correct.
Ground 5
5.That the learned trial magistrate failed to properly consider the elements of the charge.
I reject this ground of appeal. It has no substance. The magistrate clearly found that there was a deliberate unlawful application of force, and as I have indicated, the defence of lawful chastisement was properly viewed as disproved.
Grounds 6 and 7
6.That the learned trial magistrate relied upon irrelevant considerations.
7.That the learned trial magistrate relied upon evidence of opinion which was irrelevant and inadmissible.

Mr Anders argues that when the magistrate said in her reasons, “the defendant’s actions were not appropriate in the circumstances”, and found that “both [Ms F] and [Mr W] have given evidence that they did not believe that it was appropriate to deal with a child in this way” the magistrate was turning her mind to irrelevant matters. Mr Anders contrasts the elements of assault with those of indecent assault, whereby community standards as to behaviour are a relevant consideration. He argues that no such considerations are relevant when considering the charge of assault yet they seem to have informed the magistrate’s findings to the extent that they became an element of the charge. Mr Stratton‑Smith argues that these considerations were relevant to the defence of reasonable chastisement, and that the offence was made out without them in any event.
There may be some merit in Mr Anders’ argument. However, it could have made no difference to the finding of guilt by the magistrate. The magistrate clearly found that there was a deliberate, and unlawful, application of force. She considered the appropriateness or otherwise of the appellant’s conduct as an additional matter, relevant to the applicability of the defence. In my view, the finding of assault was inevitable despite the opinions of the witnesses as to its appropriateness. The prosecution case was made out without their opinions.
Ground 8
8.That the allegation upon which the prosecution relied was not adequately particularised and as such, the defence was not placed on proper notice of the case it was required to meet.
As I understand this ground of appeal and as it was elaborated on in argument, Mr Anders puts that the discrepancies between the evidence of Ms F and Mr W were such that they could have been talking about two different occasions, and therefore particulars to identify the occasion were not adequate.
After the two eyewitnesses gave evidence, the prosecution applied to amend the Complaint. Originally the Complaint alleged that the offence occurred on 6 June 2005. Over objection, the magistrate allowed the Complaint to be amended to read:
Between 31^st day of May and the 1^st July 2005 at Stepney in the said State assaulted [C]. Section 39(1) of the Criminal Law Consolidation Act, 1935.
In some circumstances, particularly where it has been alleged that more than one offence of the same type occurred even though only one of those offences is being charged, where one of many defences may apply to each offence and where time is of the essence in terms of the offence being made out, further particulars may be necessary in prosecuting the matter. These were among the factors considered by the Court in Johnson v Miller,[52] a case that was confirmed, again in the context of South Australian law, by the High Court in WGC v The Queen.[53] Although in dissent as to the statutory construction of the offence and the disposition of the appeal, Kirby J set out the well-settled law regarding whether specific dates are required in the particulars of a charge:[54]
[52] (1937) 59 CLR 467.
[53] (2007) 82 ALJR 220.
[54] Ibid 229.
The materiality of the date of the offences
General rule: non-materiality: Generally, the date of an offence, whether specified in the formal document containing the charge or in separate particulars, is not treated as a material fact which the prosecution must prove beyond reasonable doubt in order to make good its accusation. So much was stated by Atkin J in Dossi, although his Lordship acknowledged that there were exceptions to the general rule:
“From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. 'And although the day be alleged, yet if the jury finds him guilty at another day, the verdict is good, but then in the verdict it is good to set down on what day it was done, in respect of the relation of the felony; and the same law is in the case of an indictment ... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual day specified in the indictment.”
Because of the position at common law, there was in Dossi (as is often the case) no need to invoke the broad statutory powers of the kind commonly given to courts to amend indictments in the course of a trial.
The provision of particulars of a count in an Information is envisaged by r 4 in Sched 3 to the [Criminal Law Consolidation Act 1935 (SA)]. The consequence of providing such particulars is then governed by the significance to be attached to them in the circumstances of the case. This requires attention to be given to the terms of any statutory provision stating the offence in question. It also requires attention to the way the particular trial was conducted.
Exceptions arising from statute: The potential of statutory provisions, exceptionally, to render the specification of a date material, has been acknowledged in many cases. In Hackwill v Kay, the Full Court of the Supreme Court of Victoria, after citing Dossi, addressed its attention to whether the date specified was an essential part of the alleged offence and thus had to be proved strictly in order for the prosecution to succeed. In Hackwill, the statute provided that an information for offences of the relevant kind “shall be laid within 12 months from the time when the matter of such information arose and not afterwards”. On the basis of such a provision, the Full Court held that the date of the alleged offence was “a most material matter and is ... part of the essence of the offence”. [Citations omitted.]
I reject this ground of appeal. The date of an offence pursuant to former s 39 of the CLCA is not material to it being made out. Apart from discrepancies (notably not as to time or date) between the evidence of the two witnesses, there is nothing to suggest there was more than one incident of the type alleged. The magistrate found that their evidence was not “so much at odds they could not be describing the same incident”. There were also a number of consistencies in their evidence in relation to how and when the incident occurred. Mr W said he could only remember one occasion of the type described and Ms F was present on that occasion. Both witnesses believed the incident occurred in June 2005 and rejected suggestions put to each of them that the incident never, in fact, occurred.
I dismiss the appeal against a finding of guilt.
Appeal Against Sentence
1.That the learned sentencing magistrate erred in failing to grant the application pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA).
2.That the learned sentencing magistrate erred in assessing the criteria relevant to an application of s 16 of the Criminal Law (Sentencing) Act 1988 (SA).
Both grounds of appeal against sentence essentially cover the same area. Mr Anders argues that the sentencing magistrate should have recorded no conviction upon a finding of guilt, pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). The appellant argues that in dealing with that decision the magistrate erred as a matter of law in applying the wrong criteria.
In her sentencing remarks, which because of their brevity I set out in full, the magistrate said:[55]
The defendant has been found guilty by me of an assault on the four year old victim. The incident has occurred in the context of a childcare centre. On the evidence before me it would appear that the defendant became frustrated with the child on this day and treated her in a manner which I have found to be inappropriate. I note the defendant, as a result of this, has lost her employment and the fact that an offence of this kind has been proved against her I am quite sure will stop her being employed in the childcare area. I note she is 51 years of age with no previous convictions. She is not entitled to the leniency which would otherwise be extended to a person who has pleaded guilty. I note the child did not suffer any injury. I have had provided to me a victim impact statement. The offending certainly can be described as being at the lower end of the scale but nevertheless in circumstances where it has been committed in a childcare centre: it is a serious offence and I consider it is necessary to impose a penalty which not only would deter the defendant but anyone else from similar offending. She is not entitled to the benefit which would have followed from a guilty plea. In those circumstances I do not consider it would be appropriate to proceed without a conviction.
The defendant will be convicted, placed on to a good behaviour bond for a period of two years in the amount of $500.00. On top of that there will also be court fees. Costs defence to prosecution in the amount of $750.00
[55] Remarks on Penalty, SA Police v Lumb (Magistrates Court of SA, Magistrate Deland, 27 February 2008).
It can be seen that the magistrate has related the appropriateness to proceed without a conviction to the fact that appellant has not pleaded guilty to the offence. The appellant’s not pleading guilty is a factor she has taken into account in determining whether or not to proceed to a conviction. In my view, the magistrate has erred in taking that into account. A plea of guilty is not a criterion as to whether or not to proceed to a conviction – whether it be pursuant to s 16 or s 39 of the Sentencing Act. Section 16 of the Sentencing Act states:
16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)that the defendant is unlikely to commit such an offence again; and
(b)that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Martin J in Hemming v Mundy[56] held that by deleting the words “but no other penalty” from this section in 1991, “Parliament evinced an intention that the imposition of a penalty additional to the penalty prescribed for an offence should not prevent the operation of s 16”.[57] In distinguishing that case in the context of mandatory licence disqualification, Bleby J stated in Hyde v Police:[58]
The necessary criteria of proposed fine, community service or both, are in my opinion, exclusive of any other proposed penalty for the offence, whether required to be imposed or merely proposed in the exercise of the court’s discretion.
[56] (2001) 122 A Crim R 329.
[57] Ibid 334.
[58] (2006) 167 A Crim R 185, 191.
Given that the magistrate was considering a bond, it may be that she was contemplating the application of s 39, rather than s 16 of the Sentencing Act. Either way, a plea of not guilty does not preclude the operation of either section.
As the magistrate has clearly erred, it is a question of resentencing.
Resentencing
In my view, although the offence has been clearly made out, it is appropriate to exercise the discretion under s 16 of the Sentencing Act. The appellant is a 51 year old woman with no previous convictions. The offending itself was obviously spontaneous, and there was no physical harm done to the child. The consequences of her behaviour are grave, as a conviction, or even a finding of guilt, may compromise her employment prospects in childcare.
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.