Nadler v Police
[2008] SASC 242
•3 September 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NADLER v POLICE
[2008] SASC 242
Judgment of The Honourable Justice Gray
3 September 2008
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - COMPETENCE AND COMPELLABILITY - CHILDREN - GENERALLY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
Appeal against finding of guilt – appellant charged with assault against complainant, his step-son, pursuant to former section 39(1) Criminal Law Consolidation Act 1935 (SA) – complainant was 12 years old at the time of the alleged offence – appellant claimed that his conduct was necessary to protect his wife, the complainant’s mother, and relied on defence of “defence of another” in section 15 Criminal Law Consolidation Act – prosecution called three witnesses at trial: the complainant, the complainant’s cousin and the complainant’s cousin’s wife who were both eyewitnesses to the incident – defence called three witnesses: the appellant, the complainant’s mother also the appellant’s wife, and the complainant’s sister also the appellant’s step daughter – complainant became upset and distressed at the commencement of his evidence – magistrate undertook an inquiry pursuant to section 21(2) of Evidence Act 1929 (SA) and excused complainant from giving evidence on the ground that there was a substantial risk of serious harm to the relationship between the complainant and the appellant – appeal made application for a permanent stay of proceedings as an abuse of process – magistrate refused submissions on the application and refused to grant stay – appellant found guilty but no conviction recorded – on appeal, appellant complained that the magistrate erred in (i) refusing to hear submissions on the defendant’s application to permanently stay the proceedings on the grounds of abuse of process, and in refusing to grant the permanent stay; (ii) applying the onus and standard of proof; (iii) applying section 15 of the Criminal Law Consolidation Act; and (iv) excusing JS from giving evidence – an extension of time within which to appeal was also sought.
Held, allowing the appeal and dismissing the complaint: extension of time granted – period of delay is very short, explanation for delay is reasonable, and there is no obvious prejudice to other party – magistrate’s failure to hear submissions on the stay application denied the appellant procedural fairness – magistrate did not err in refusing to grant stay – magistrate erred in her application of the burden and standard of proof – magistrate erred in her application of section 15 Criminal Law Consolidation Act – magistrate erred in excusing the complainant from giving evidence – section 21 Evidence Act should be narrowly and strictly to promote the certainty of the criminal trial process – section 21 Evidence Act is restricted in its application to biological and adopted children of accused, and does not extend to step-children - complaint should be dismissed in all of the circumstances.
Administration and Probate Act 1958 (Vic) s 91; Adoption Act 1988 (SA) s 9(1); Crimes Act 1900 (NSW) s 545E; Crimes Act 1958 (Vic) s 44 and s 400; Criminal Law Consolidation Act 1935 (SA) s 15, s 20 and s 39(1); Evidence Act 1929 (SA) s 13 and s 21; Evidence Act 1995 (Cth) s 18 and s 19; Evidence Act Amendment Act (No.2) 1983 (SA) s 4; Inheritance (Family Provision) Act 1972 (SA); Magistrates Court Act 1991 (SA) s 42; Statutes Amendment (Domestic Partners) Act 2006 (SA) s 97(2); Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA); Summary Offences Act 1953 (SA) s 23; Summary Procedure Act 1921 (SA) s 69; Supreme Court Civil Rules 2006 (SA) s 283; Wills Act 1997 (Vic) s 55, referred to.
Bailey v R (1994) 71 A Crim R 355; Beckwith v R (1976) 135 CLR 569; Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; Demirok v R (1977) 137 CLR 20; Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137; Faagutu (2000) 112 A Crim R 28; Gillan v Police (2004) 149 ACrimR 354; Gray v Police (2003) 85 SASR 1; Harris v Mill (Unreported, Supreme Court of South Australia, Von Doussa J, 7 April 1988); Jago v District Court (NSW) (1989) 168 CLR 23; McGuffie v Korczynski (2003) 228 LSJS 79; Modra v Police [2006] SASC 52; Ngalkin (1984) 12 A Crim R 29; Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352; Police v Caldwell (2007) 172 A Crim R 468; Police v Lloyd (1998) 72 SASR 271; Police v Warren [2000] SASC 285; Popple v Rowe (1998) 1 VR 651; Prater v Rowbottom (Unreported, Supreme Court of South Australia, White J, 12 March 1991); R v Barmby [2007] SASC 354; R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487; R v Calides (1983) 34 SASR 355; R v Kneebone (1999) 47 NSWLR 450; R v Martin (2007) 99 SASR 213; R v Moussa (No 2) (2002) 134 A Crim R 296; R v Moussa (No 2) (2006) 134 A Crim R 346; R v RGP (2006) 167 A Crim R 468; R v Shaw (1991) 57 A Crim R 42; R v T,T (2004) 90 SASR 567 ; R v Wright (2004) 155 ACTR 50; R v YL (2007) 187 FLR 84; Rona v District Court (SA) (1995) 63 SASR 223; Selig v Hayes (1989) 52 SASR 169; Taikato v R (1996) 186 CLR 454; Vitro v R (1978) 141 CLR 88; Walton v Gardiner (1993) 177 CLR 378; Wendo v R (1963) 109 CLR 559; Whitbread v Cooke (1986) 5 ACLC 304; Whitehorn v The Queen (1983) 152 CLR 657; Wunsch v SA Police (1995) 64 SASR 203, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"child", "close relative"
NADLER v POLICE
[2008] SASC 242Magistrates Appeal
GRAY J.
This is an appeal against a finding of guilt.
Introduction
The defendant and appellant, Craig Alan Nadler, was charged on information that on 8 September 2005 at Taperoo, he assaulted the complainant, JS, his stepson, contrary to the former section 39(1) of the Criminal Law Consolidation Act 1935 (SA).[1] He pleaded not guilty on 2 April 2007. The charge was found proved following a trial before a magistrate on 3 April 2007, and 16 and 17 May 2007. No conviction was recorded. The defendant was ordered to pay a fine in an amount of $400, a victims of crime levy in an amount of $140, prosecution costs in an amount of $16 and costs to the police in an amount of $800. The Further Amended Notice of Appeal identifies a number of alleged errors in the course of the trial and in the Magistrate’s reasons for judgment.
[1] By virtue of the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA), the offence of common assault was replaced with the new offence of assault. It was enacted as s 20 of the Criminal Law Consolidation Act 1935 (SA), with effect from 15 May 2006.
The history and background to the incident the subject of the charge were described by the Magistrate in the following terms:
The defendant met and married [JS’s] mother when [JS] was about seven years old. His father’s violence towards his mother resulted in the separation of [JS’s] parents. Whether because of the violence he was exposed to when his parents were together, or for some other reason, [JS’s] behaviour is not the behaviour of a normal child. He becomes deeply distressed very easily. He suffers fits of anger he finds difficult to control.
The defendant and his wife sought [and] began seeking professional help dealing with [JS’s] behaviour in 2002. [JS] is under the care of a child psychiatrist at the Womens and Childrens Hospital. On occasion his psychiatrist has admitted [JS] to the hospital as an inpatient. His psychiatrist has also recommended behaviour management techniques to the [defendant] and [JS’s] mother. They tried to apply them, with differing degrees of success at different times. The events canvassed at trial culminated at the end of a period of weeks during which they had unsuccessfully attempted to obtain respite assistance through the hospital. [JS] was then twelve years old.
…
On the 8th of September 2005, Stephen Madden took his wife and daughters and a puppy to visit his aunt, the [defendant’s] wife. He noticed the [defendant] pushing his chair back to impede [JS’s] progress towards a tap. There was no conversation about this.
It is clear that the defendant was trying to implement recommended behaviour management techniques to prevent damage occurring as a result of the child bumping a cupboard whenever he tried to use a particular route through the kitchen. It is also clear that the child repeated his attempts to use the route.
When the Maddens left the house, with their children and their dog, they sat in their four wheel drive vehicle. It was parked in the street at the front of the [defendant’s] house. The [defendant] remained on the porch. The defendant’s wife and her two children came to the fence at the front of the property.
The Maddens invited the daughter of the defendant’s wife to stay with them.
The defendant’s wife made arrangements for her daughter to stay with the Maddens while [JS] was standing next to her. [JS] usually stayed with the Maddens, not his sister.
[JS] made it clear to Mr Madden (by his oral interruptions and his actions) that he wanted to be the child who went to stay with the Maddens. He stood on the fence. He put his arms around his mother. He began jumping up and down and alternately cuddling and poking at her. She told him to stop it. He continued.
Mr Madden interpreted his behaviour as “acting the goat, mucking around”. His assessment may not have been an accurate assessment.
The Magistrate then described the incident giving rise to the charge:
At that point the defendant left the porch and walked quickly towards the boy and his mother. He was red in the face. He grabbed the boy from behind, pinning his arms, and took him to the ground. [JS] began screaming. The [defendant’s] wife and her daughter told the [defendant] to stop but he continued to hold the boy down. They set about separating the defendant from [JS].
Mr Madden’s children were also screaming. He left his vehicle to assist his aunt and his cousin to separate the defendant from the boy. Before Mr Madden reached them, the defendant let go of [JS]. The defendant walked inside the house without looking back or speaking to anyone.
Given my ultimate conclusion on the outcome of this appeal, it is necessary to consider the evidence presented at trial in some detail.
The Prosecution Case
In summary, it was the prosecution case that the incident the subject of the charge constituted an unprovoked, violent and vicious attack by the defendant toward JS, which was out of all proportion to any perceived threat from JS. The prosecution called three witnesses – JS, JS’s adult cousin Stephen Madden, and his wife, Sylvia Madden. The prosecution also tendered the transcript of the defendant’s police video interview on 19 September 2005.
JS
At the commencement of JS’s evidence, he became upset and distressed. An inquiry was undertaken pursuant to section 21(2) of the Evidence Act 1929 (SA) and the Magistrate thereafter excused JS from giving evidence, purportedly pursuant to section 21(3)(a)(ii) of the Evidence Act. JS was 12 years old at the time of the alleged offence, and 13 years old at the time of the trial.
Stephen Madden
Mr Madden gave evidence that prior to the incident the subject of the charge, he had a reasonable relationship with the defendant. Following the incident, Mr Madden had not had much contact with the defendant. Mr Madden described the defendant as a “good enough bloke” and a “nice enough guy”. Mr Madden had a good relationship with both JS and JS’s mother, Mrs Nadler. Mr Madden described the complainant as a “good kid” and stated that Mrs Nadler was “one of [his] favourite aunties”.
Mr Madden described the appearance of the defendant and JS at the time of the incident. He estimated that the defendant would weigh about 100 kilograms and JS about 35 kilograms. He further described JS as being “slight, like a greyhound, like a whippet”, and estimated his height to be about 4’ 9” (145 centimetres).
Mr Madden could not recall any earlier incidents in which he had witnessed JS being violent toward anybody. He could, however, recall occasions when JS had threatened the defendant. He had heard JS say on occasions that “he wanted to kill” the defendant, when the defendant or Mrs Nadler had asked JS to do something which he did not want to do.
On the day of the incident, at about 4:30pm, Mr Madden, his wife and his three children visited the Nadler family at their family home in Taperoo for the purpose of showing them a puppy which they had recently purchased. Mr Madden gave evidence that on the day of the visit the defendant had appeared a little tense and agitated, and that it was apparent to him that something was “wrong” with the defendant.
Mr Madden then gave evidence about the events immediately preceding the incident. When he and his family went to leave the house, Mrs Nadler, JS and JS’s sister DS came out to the front fence of the house to wave goodbye. The defendant remained standing at the front door. JS was standing on top of the fence and had his arm around Mrs Nadler for balance. JS was mucking around and “acting the goat” with Mrs Nadler. He was jumping on her, cuddling her and poking her in the ribs. Mrs Nadler was laughing and was saying “stop it”, in a playful fashion. She was not distressed by JS. Everybody was laughing and having a good time. There was no aggression between JS and Mrs Nadler, nor did it appear that they were upset with one another.
Mr Madden then described the incident the subject of the charge. The defendant suddenly stormed up to JS. He looked red and angry. The defendant then grabbed JS from behind, around his neck in a headlock fashion. He put his knee into JS’s back and bent him backwards. JS started screaming and waving his arms around frantically in an attempt to get away from the defendant. The defendant was hitting JS’s arms away and some blows struck JS’s upper chest. The defendant dragged JS along the ground.
Mrs Nadler screamed at the defendant words to the effect of “what are you fucking doing” and both she and JS’s sister jumped on the defendant and tried to pull him off JS. Eventually the defendant let go and stormed off back inside. Mr Madden described the attack as “vicious and intense”.
Mr Madden gave evidence that following the incident they drove back to their home in Paralowie – a journey of about 15 to 20 minutes. When they arrived home, Mr Madden telephoned Mrs Nadler. Mrs Nadler told him that JS was having difficulty breathing and she ended the call. About ten minutes later, Mrs Nadler telephoned Mr Madden back and requested him to drive her and JS to the Women’s and Children’s Hospital. Mr Madden picked them up at around 5.30 p.m. Mr Madden gave evidence that on the way to the hospital they stopped at Kentucky Fried Chicken. At this time Mr Madden asked Mrs Nadler where the defendant was. Mrs Nadler replied “I don’t give a fuck about [the defendant]”. Mrs Nadler then said to JS “If anything happens to [the defendant] I never want to see you again”.
The Magistrate formed the following view of the honesty and reliability of Mr Madden’s evidence:
Stephen Madden did his best to be an honest and reliable witness. He did not always fully comprehend things he saw and heard, but having seen and heard him in the main I prefer his evidence to the evidence of other witnesses, including his wife.
Notwithstanding these observations, as will be discussed later in these reasons, the Magistrate rejected Mr Madden’s account of the incident.
Sylvia Madden
Mrs Madden gave evidence that prior to the incident the subject of the charge, she had a fairly good relationship with the defendant, and that she got on really well with JS’s mother, Mrs Nadler.
Mrs Madden had known JS since his birth. She was regularly in contact with JS and his family and saw him once or twice a week. Mrs Madden described JS’s general behaviour as that of a “normal 12 year old boy”. She could not recall any occasions upon which she had witnessed JS being threatening or abusive toward the defendant or Mrs Nadler.
Mrs Madden gave evidence concerning the events immediately preceding the incident the subject of the charge. She was sitting in the car out the front of the house and she was talking to Mrs Nadler about DS’s proposed sleepover at their house the following Friday. JS was standing next to Mrs Nadler. JS wanted Mrs Nadler to ask Mrs Madden whether he too could sleep over the following next Friday. He was poking Mrs Nadler in the ribs with his index finger and saying words to the effect of “Come on please, ask them”. Mrs Nadler was smiling and laughing. She was telling JS to “stop it”, and at the same time was “catching his arm … like a little game”. There was no aggression between JS and Mrs Nadler.
Mrs Madden then described the incident the subject of the charge. The events happened very quickly. The defendant came toward JS from the side, and screamed in a loud voice that he had “had enough”. He was really angry and his face was red. He put his right arm tightly around JS’s throat, in a strangling sort of fashion, in a headlock. He kneed JS in the back and pulled him to the ground. He grabbed JS’s hand and was punching toward his chest with a closed fist. JS was crying and was trying to get away from the defendant. Mrs Nadler and DS then went to the defendant and removed him from JS.
The Magistrate formed a less favourable view about the evidence from Mrs Madden:
[Mrs Madden’s] evidence appeared to have been coloured by her dealings with normal children. [JS] is not a normal child. He is a child who sometimes has be to physically restrained or contained within the confines of a hospital.
Again, it is to be observed that the Magistrate rejected Mrs Madden’s account of the incident.
The Defendant
The defendant undertook a recorded interview in the presence of two police officers and his lawyer, on 19 September 2005, 10 days subsequent to the incident the subject of the charge.
The defendant recounted that JS had learning difficulties. JS had undergone psychiatric treatment, and had been diagnosed, inter alia, with a post-traumatic stress disorder. Medication was prescribed in an attempt to control his mood swings. The defendant stated that on various occasions JS had attacked him with a knife, hit him, and had attempted to choke and bite him. The defendant also stated that JS had engaged in self-harm.
The defendant described the demeanour of JS in the weeks leading up to the incident. He had been “extremely hostile” and “both verbally and physically extremely aggressive” as a result of the recent theft of his bicycle.
The defendant described the demeanour of JS on the day of the incident. He was “very angry and upset” as a result of his not being allowed attend a school disco that evening, and his having to stay with Mrs Nadler on the following pupil-free day.
The defendant described the events leading up to the incident. JS, Mrs Nadler and DS went outside with him to farewell the Madden family. The four were standing close together. JS attempted to punch Mrs Nadler in her back with a closed fist, but Mrs Nadler stopped the punch from landing on her. Mrs Nadler tried unsuccessfully to calm JS down. JS then began making sarcastic comments to both the defendant and Mrs Nadler. At some point JS said to the defendant “I’ll kill you”.
The defendant described the incident the subject of the charge. It all happened rather quickly and he did not remember all of the details. He remembered holding JS with his right arm and looking down toward him. Mrs Nadler had told him that she had intervened, but he was unable to remember this. At some point the defendant went into the house.
During the course of the interview, the defendant stated that he had “lost it”, which he subsequently explained meant that he had “lost his temper”. He was upset with himself and he felt “extremely guilty” about the incident.
The Magistrate, in her reasons, made only one brief reference to the account given by the defendant in his police interview.
The Defence Case
In summary, it was the defence case that the incident the subject of the charge constituted a protective response by the defendant to both verbal and physical threats from JS toward Mrs Nadler. It was contended that the defendant’s actions were necessary and reasonable in the context of these threats. The defence called three witnesses – the defendant, JS’s mother and the defendant’s wife Janet Nadler, and JS’s sister and the defendant’s step-daughter DS.
Janet Nadler
Mrs Nadler gave evidence that she married the defendant in 2000. At that time JS was seven and a half years old. Mrs Nadler outlined JS’s physical and psychological conditions. JS suffered from asthma. He demonstrated behavioural difficulties and had been diagnosed with “oppositional behavioural disorder” and “aggressive behavioural disorder”. JS had received treatment by the Child and Adolescent Mental Health Service (CAMHS). She described JS as being very argumentative and verbally aggressive. JS would sometimes go into rages where he would verbally abuse and physically threaten family members with various objects. On occasions JS had punched her, causing her to bruise and had threatened her with knives, coat hangers, bits of wood, bike pumps and kitchen implements. JS also had a speech impediment and learning difficulties. Mrs Nadler stated that, notwithstanding these difficulties, she maintained a very close relationship with JS.
Mrs Nadler also gave evidence concerning the demeanour of JS on the day of the incident. JS was being verbally aggressive toward her and appeared quite angry as a result of his being told that he would have to accompany her to a hydrotherapy class the following day, which was a pupil-free day. He did not want to go.
Mrs Nadler then spoke about the events leading to the incident. The defendant, DS and JS went outside to farewell Mr and Mrs Madden and their children. The defendant was standing to the right of her, about one and a half arms’ lengths away and JS was on her left. During this time, JS was quite forcefully pressing his two knuckles into her spine. JS then walked behind Mrs Nadler and firmly punched her in the back which caused her to move forward. As Mrs Nadler turned toward JS, he said to the defendant “I’m going to bloody kill you”.
Mrs Nadler went on to describe the incident the subject of the charge. The defendant grabbed JS’s left shoulder with his right arm and pulled him down toward the ground. The defendant then struck JS once with an open and loose fist. Mrs Nadler then grabbed the defendant’s hand and pulled him up.
A short time after the incident, Mrs Nadler and JS were driven by Mr Madden to the Women’s and Children’s Hospital where they reported the incident to a psychiatric nurse. Mrs Nadler vehemently denied the conversation earlier referred to in Mr Madden’s evidence at KFC on the way to the hospital. Upon arrival at the hospital, JS was upset but did not appear to be physically hurt.
Mrs Nadler stated that she had never witnessed the defendant previously physically abuse JS or anyone else. She also expressed her opinion that the defendant acted in the way that he did in order to protect her from JS.
The Defendant
The defendant gave evidence. He stated that JS had learning problems and behavioural issues. JS would become verbally abusive and had on occasion hit him, Mrs Nadler and DS. The defendant recounted an incident about one week prior to the incident the subject of the charge when JS had struck him in the arm with his fist, and as punishment he had not been permitted to attend a school disco which was to be held on the night of the incident.
The defendant gave evidence about his and JS’s physical stature at the time of the incident. He was 166 centimetres tall and JS was 155 centimetres tall. JS would have weighed between 35 and 38 kilograms.
The defendant gave evidence about his relationship with JS both before and after the incident. He recalled taking JS to the movies, the Investigator Science Centre and the museum. He had taken JS and Mrs Nadler on several interstate and overseas trips. He was very involved in JS’s education and had served on the school council. Following the incident, by reason of a Family Court order, he had not been permitted to see JS. The defendant continued to love JS and would be happy to live with him again. He still took interest in JS’s education and continued to “fight to make sure he gets his rights in school”.
The defendant gave evidence about his relationship with Mr Madden. He did not care for Mr Madden, and he described their relationship as “a bit strange”. The defendant found aspects of Mr Madden’s behaviour to be extremely offensive to his Jewish heritage. The defendant described his relationship with Mrs Madden as “decent” – he did not have any major problems with her.
The defendant then gave evidence concerning JS’s demeanour on the day of the incident. JS was angry and was annoyed that he was not allowed to attend the disco that night, and that he would have to attend a hydrotherapy class with Mrs Nadler the following day.
The defendant then recounted the events immediately preceding the incident. At about 4.30pm, Mrs Nadler, DS and JS went outside with him to farewell the Madden family. The defendant was standing next to Mrs Nadler, and JS was standing behind her. Mrs Madden and DS were discussing DS’s planned visit the following day. At this time, JS was pestering Mrs Nadler, “bothering her… pushing her and poking her”. JS struck Mrs Nadler in the back with an open fist. JS then yelled in a loud and aggressive voice “I’m going to kill you”. When making this statement, JS was looking at the defendant and he was positioned behind Mrs Nadler, with his right hand in a fist directly behind her back. JS then began to move his fist toward Mrs Nadler’s back, preparing to punch her.
The defendant then attempted to recount the incident the subject of the charge. He acknowledged that his recall was uncertain. He went over to Mrs Nadler so as to protect her from being punched by JS. He quite firmly grabbed JS, holding his upper left arm with his right hand. There followed a period of about 15 to 30 seconds when he did not remember what had happened. At some point he let go of JS and went inside.
In the course of his evidence, the defendant stated that he considered that his response to JS was a response “necessary to protect my wife”. However, the defendant, at the same time, accepted that he may not have used “the best method” of dealing with the situation and spoke of his “poor judgment”. This evidence is to be understood against the background of what appeared to the defendant to be an emergency situation.
The Magistrate did not form a favourable view of the reliability of Mrs Nadler or of the defendant:
The [defendant] and his wife both gave evidence.
Seeing and hearing them, I was satisfied that the defendant and his wife unconsciously reconstructed their evidence. The defendant has no memory of what he did when he used force to restrain [JS]. [The] defendant’s wife has no memory at all of uttering the ill considered words she directed at [JS], in the presence of Mr Madden, while he drove them to the hospital. Their joint and several reconstruction of the events may well be the product of too much mulling while seeking to understand what happened at a time when they were both stressed by the disciplinary measures they had been using for several days. They had been taking the disciplinary measures, in accordance with what they believed the psychiatrist’s advice to be, and against the wishes of [JS], over a period of several days. They may not have completely understood the psychiatrist’s advice.
DS
DS, JS’s sister, also gave evidence. She was very close to the defendant and she treated him like her own father. She was also very close to JS. She was less close to the Madden family.
DS gave evidence that JS had learning problems and behavioural issues. He would become angry, violent and aggressive. He was hard to cope with. DS described one occasion when JS had attempted to suffocate her with a pillow. She also recalled occasions when JS had attacked the defendant variously with scissors, wire, rope and knives. JS had threatened DS and the defendant. DS stated that she had never witnessed the defendant or Mrs Nadler physically abuse JS.
DS described the demeanour of JS on the day of the incident as “very aggressive” and “very on edge”. JS had had his bicycle stolen the previous day and was very angry and upset.
DS gave evidence about the events leading up to the incident. She went outside with Mr Madden and their children to say goodbye. She then went back inside for a short time and returned outside at the same time as Mrs Madden, the defendant, Mrs Nadler and JS.
DS heard Mrs Nadler and JS discussing JS’s pupil-free day, which was the following day. JS’s tone of voice became aggressive. She then saw a pained look on Mrs Nadler’s face, as if she was reacting to having been hurt. She inferred that JS had hit Mrs Nadler in the back, but she did not witness any strike. JS regularly behaved like this. JS was getting really upset and angry. Mrs Nadler then put her arm around JS.
DS then described the incident the subject of the charge. About a minute or two later, she heard JS say to the defendant “I’m going to kill you” in a very aggressive tone. The defendant then grabbed JS with his right hand, put him to the ground and smacked him with his open left hand, striking JS’s abdominal area. Mrs Nadler then helped both the defendant and JS up from the ground. It was DS’s opinion that the defendant acted in the way that he did in order to protect Mrs Nadler from JS. DS said that following the incident, JS appeared very distraught. She did not observe any injuries to JS.
The Magistrate did not make any finding about the honesty and reliability of DS’s evidence. In fact, the Magistrate made no reference to the evidence of DS at all.
Nature of the Appeal
An appeal from a magistrate is regulated by section 42 of the Magistrates Court Act 1991 (SA), which relevantly provides:
(4)On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b) it may remit the case for hearing or further hearing before the Magistrates Court;
(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(6)Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.
Section 42 provides for a hearing de novo. The appeal is a rehearing. This Court is to undertake an independent review of the evidence and to form its own view of the case. Due weight is to be given to the advantage of the Magistrate in having seen and heard the witnesses. Providing due weight is given to this consideration, this Court may, if it takes a different view on the evidence, substitute its view for that of the Magistrate. Alternatively, if this Court is satisfied that it is proper to do so, it may remit the matter for rehearing.[2] As the Court is concerned with an appeal from a summary matter, it is important that if justice permits, a robust approach be taken to reach finality.
[2] Fox v Percy (2003) 214 CLR 118 at [23], [25].
Extension of Time
Pursuant to rule 283 of the Supreme Court Civil Rules 2006 (SA), an appeal must be instituted within 21 days of the judgment appealed against. The Magistrate delivered judgment on 8 November 2007 and the notice of appeal was filed on 4 December 2007. It is four days out of time.
The notice of appeal seeks an extension of time on the following grounds:
An extension of funding [was] sought and from the Legal Services Commission and has only recently been granted.
The obtaining of advice from counsel.
Annexed to the notice of appeal is a fee remission certificate which indicates that fee remission was granted to the defendant by the Legal Services Commission on 15 November 2007.
I summarised the relevant principles to be applied when considering an application to extend time in Warren.[3] The period of delay in this case is very short. I accept that the explanation for the delay as proffered is reasonable and satisfactory. It is relevant that the delay has not been caused through any fault of the defendant. There will be no obvious prejudice to any party as a consequence of granting an extension of time. In these circumstances I consider that it is appropriate to grant an extension of time to appeal.
[3] Police v Warren [2000] SASC 285 at [16]-[17]. See also R v Barmby [2007] SASC 354 at [10]-[11]; Modra v Police [2006] SASC 52 at [32].
Grounds of Appeal
The Further Amended Notice of Appeal, amended with permission of the Court on 2 April 2008, advances four primary complaints. It is contended that the Magistrate erred in (i) refusing to hear submissions on the defendant’s application to permanently stay the proceedings on the grounds of abuse of process, and in refusing to grant the permanent stay; (ii) not properly applying the onus and standard of proof; (iii) not properly applying section 15 of the Criminal Law Consolidation Act; and (iv) excusing JS from giving evidence.
Stay of Proceedings/Abuse of Process
At trial, an application was made by defence counsel for a permanent stay of the proceedings as an abuse of process. The Magistrate refused to hear submissions on the application, and refused the application. On appeal, it was contended that the Magistrate’s refusal to hear submissions on the application amounted to a denial of procedural fairness and/or natural justice. It was further contended that the Magistrate’s refusal to grant the stay deprived the defendant of evidence that would have assisted the defence.
The context to the permanent stay application was recounted in an affidavit of trial defence counsel, James Peter Noblet, sworn on 29 February 2008, which was tendered by consent:
During the course of the Prosecutor’s opening address I noted an inconsistency between the proposed evidence from the victim, [JS] and the proposed evidence from two eye witnesses, Stephen and Sylvia Madden.
The Prosecutor told the Learned Trial Magistrate the victim [JS] would say that the defendant approached him, grabbed him in a headlock and put him to the ground causing his discomfort in the process.
The Prosecutor then went on to say that eyewitnesses Stephen and Sylvia Madden would say the defendant approached the victim, grabbed him in a headlock, placed his knee in the victim’s back and punched him four times to the chest area.
I noted that the victim’s version of the assault was more consistent with the proposed evidence from the victim’s mother who had been present at the time of the incident.
The victim’s proposed evidence was also consistent with the defendant’s contention that his physical contact with the victim was intended to prevent the victim from harming his mother.
The Prosecutor proceeded to call the victim [JS] who appeared extremely upset at the prospect of giving evidence.
In such circumstances Ms McInnes SM provided the victim the opportunity to obtain independent legal advice in relation to whether he was a compellable witness.
Mr Aitken subsequently appeared for the victim and upon hearing brief evidence from the victim, Ms McInnes SM granted the application pursuant to Section 21 of the Evidence Act that the victim could not be compelled to give evidence.
The Prosecutor then advised the Court that in such circumstances he would proceed with the prosecution and rely on the evidence of two eyewitnesses, Stephen and Sylvia Madden.
It was at this point that an application for a stay of proceedings was made on behalf of the [defendant] on the basis that through no fault of his own the defendant was to be deprived of evidence that would support his contention that he had acted in the defence of another and deprived of evidence that would contradict the evidence of Stephen and Sylvia Madden.
Ms McInnes SM refused to hear submissions in support of the application and refused the application without providing any reasons.
Ms McInnes did indicate that the fact that she would not hear submissions in support of the application would be noted on the court file.
A further application for a stay of proceedings was incorporated into the written closing address filed on behalf of the defendant.
An affidavit of the trial prosecutor, Stephen Leslie Bradfield, sworn 5 March 2008, was also tendered by consent. Exhibited to the affidavit is the prosecutor’s written submissions before the Magistrate which were tendered at the trial. In his affidavit, Mr Bradfield deposes that he is unable to recall the submissions he made by way of opening argument. Further, he concedes that he may have informed the Court of the nature of the evidence that would be given by JS, and that he may have submitted that JS would say that the defendant approached him, grabbed him in a headlock and put him on the ground causing his discomfort.
In support of the permanent stay application, the defendant relied upon the alleged unfairness deriving from losing the opportunity to have evidence before the Court that was consistent with his version of the events, and which directly conflicted with Mr Madden’s version of the events. The defendant submitted that JS’s evidence was material to the prosecution case, such that the deprivation was critical:
[JS] was nonetheless on anyone’s account, a material witness, he was the victim, he was present at the time that an assault was perpetrated on him and apparently able to give an account of firstly, the level of violence that was inflicted upon him and also relevantly the background to this particular incident in terms of what force might have been reasonably proportionate in the defendant’s mind by virtue of his previous conduct.
The Crown submitted that on no view could the circumstances justify a permanent stay, and that although her Honour determined to proceed without hearing the application, no injustice was occasioned and no error was manifest in the exercise of the Magistrate’s discretion.
Before coming to discuss these submissions, it is convenient first to address the Court’s power to permanently stay proceedings.
The Magistrates Court is vested with an inherent power to stay proceedings in the exercise of its discretion so as to ensure that its processes are not abused.[4] In Gray v Police,[5] I had occasion to review the authorities dealing with the inherent power of the Magistrates Court to stay proceedings. I reviewed the observations of the High Court in Jago[6] as well as the observations of this Court in Rona[7] and Wunsch.[8] I then concluded:[9]
The conclusion to be drawn from these statements of principle is that the Magistrates Court in South Australia has the power to permanently stay proceedings where the prosecution of criminal proceedings will result in a trial that is unfair and an abuse of the processes of the court. The cases suggest that this power will only be exercised sparingly where good reason exists.
[4] Wunsch v SA Police (1995) 64 SASR 203.
[5] Gray v Police (2003) 85 SASR 1.
[6] Jago v District Court (NSW) (1989) 168 CLR 23.
[7] Rona v District Court (SA) (1995) 63 SASR 223.
[8] Wunsch v SA Police (1995) 64 SASR 203.
[9] Gray v Police (2003) 85 SASR 1 at [16].
In determining whether or not proceedings should be permanently stayed as an abuse of the Court’s process, the Court is required to undertake a balancing exercise. This balancing process was outlined by Mason CJ, Deane and Dawson JJ in Walton v Gardiner,[10] in the following terms:
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
At the same time, focus remains on whether there is any misuse of court processes or employment of court processes for ulterior purposes. [11]
[10] Walton v Gardiner (1993) 177 CLR 378 at 395-396.
[11] Police v Caldwell (2007) 172 A Crim R 468 at [56].
A decision whether or not to grant a stay of proceedings is discretionary. An appeal from such a decision is to be decided in accordance with the well-established principle that error must be identified or manifest. This approach was articulated by Dixon, Evatt and McTiernan JJ in House v The King:[12]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
[12] House v The King (1936) 55 CLR 499 at 504-505.
As was observed by Maxwell J in Whitbread v Cooke,[13] once the Court is satisfied that proceedings do constitute an abuse of process, it will usually be unthinkable to permit them to continue, because that would mean that the Court was prepared to permit and endorse its processes being employed to inflict oppression and unfairness on an accused.
[13] Whitbread v Cooke (1986) 5 ACLC 304 at 324.
In certain circumstances, the failure to call a material witness may cause such unfairness as to constitute a miscarriage of justice, and justify a stay of proceedings. A material witness is one whose evidence is necessary to unfold the narrative and give a complete account of events upon which the prosecution is based, and will in general include the eyewitnesses of any events which go to prove the elements of the crime charged.[14] Consideration of whether a defendant was denied a fair trial in these circumstances is a question of fact to be determined on a case-by-case basis. A consideration of the probity and importance of the evidence, and the credibility and reliability of the proposed witness, must be undertaken.[15]
[14] Whitehorn v The Queen (1983) 152 CLR 657 at 674.
[15] Whitehorn v The Queen (1983) 152 CLR 657 at 664, 666; R v Moussa (No 2) (2006) 134 A Crim R 296 at [17].
In Ngalkin,[16] and Faagutu[17] the failure to call eyewitnesses to the alleged offence was held to constitute an abuse of process and unfairness, which justified a stay of proceedings on the indictment. In Moussa (No 2),[18] the failure to call, inter alia, a witness who could have given “significant evidence” relevant to re-establishing the defendant’s credit and possibly raising a doubt about the reliability of the defendant’s admissions, was held to constitute a miscarriage of justice which justified the quashing of the defendant’s conviction and sentence and an order for a re-trial. In Shaw[19] and Kneebone,[20] the failure to call an eyewitness to the alleged offence was held to constitute a miscarriage of justice which warranted the quashing of the defendants’ convictions and the ordering of a retrial. In Whitehorn,[21] the failure to call the victim of the alleged offence and the only suggested eyewitness of its occurrence, was held to constitute a miscarriage of justice which warranted the quashing of the defendant’s conviction.
[16] Ngalkin (1984) 12 A Crim R 29.
[17] Faagutu (2000) 112 A Crim R 28.
[18] R v Moussa (No 2) (2002) 134 A Crim R 296.
[19] R v Shaw (1991) 57 A Crim R 42.
[20] R v Kneebone (1999) 47 NSWLR 450.
[21] Whitehorn v The Queen (1983) 152 CLR 657;
In the present case, there was a considerable amount of evidence presented both on behalf of the prosecution and the defence about what had occurred, and all witnesses were thoroughly cross-examined about their versions of events. This was not a case such as Whitehorn where the witness not called was the only suggested eyewitness to the alleged offence. Further, there were indicators, by reason of JS’s emotional distress and intellectual immaturity, which was observed first-hand by the Magistrate, that JS’s reliability and credibility could be doubted, and that his evidence may have been of limited value in any event.
In my view, the Magistrate denied the defendant procedural fairness. An important application was sought to be pursued, and the Magistrate was obliged to hear counsel on behalf of the defendant. A consequence of the Magistrate’s refusal to hear the defendant is that a perception of prejudgment may arise. It is unfortunate that the Magistrate acted in the way that she did. As a result, this Court has had to review the Magistrate’s ruling and to consider the matter without any assistance from her Honour’s consideration of the application.
Having reviewed the entire circumstances, I conclude that although JS did not give evidence, this did not mean that the court’s processes were being employed to inflict oppression and unfairness on an accused.[22] The circumstances did not justify a permanent stay. This ground of appeal is dismissed.
[22] Whitbread v Cooke (1986) 5 ACLC 305 at 324.
Onus and Standard of Proof
In the course of her reasons, the Magistrate recorded that “it is for the prosecution to prove its case, and to prove it beyond a reasonable doubt. It is not for the defendant to prove anything”. This was a correct observation. Later aspects of the Magistrate’s reasons, however, suggest that her Honour adopted a different approach.
There was a conflict between the evidence of the principal prosecution witness, Mr Madden, and the defendant. As earlier observed, in relation to the defence witnesses, the Magistrate was “satisfied that the defendant and his wife unconsciously reconstructed their evidence”. In contrast, the Magistrate made a more favourable finding about the honesty and reliability of the evidence of the key prosecution witness, Mr Madden:
Stephen Madden did his best to be an honest and reliable witness. He did not always fully comprehend things he saw and heard, but having seen and heard him in the main I prefer his evidence to the evidence of other witnesses, including his wife.
[Emphasis added]
These observations cause difficulty. A determination by a tribunal of fact in an adversary system is not a decision as to where the truth may lie, but whether the party with the onus of proof has discharged the onus to the requisite standard. In Calides,[23] when discussing the correct application of the onus and standard of proof, Wells J observed:
The onus of proof and the standard of proof must be correctly applied. It is not just for the jury to decide where the truth lies if that means, and it could well mean to a jury, that it is for them to say whether there is some material which could give them an inclination of opinion in favour of one side or the other. It would be even worse if the jury were left with the impression that it was their task to decide, and to find, whether there is some material for providing a basis for an inclination of opinion one way or the other.
As the former Chief Justice, Sir Mellis Napier, used to say many times in this Criminal Court, in such circumstances there are really, for all practical purposes, three possibilities: the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is the third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation, then, of course, the verdict must also be not guilty. Now, it is true, what [counsel for the respondent] has pointed out so clearly, that the directions on the onus and standard of proof given at the beginning and at the end of his summing up by the learned trial Judge in this case are impeccable, and, if applied logically, they would not lead the jury into error; in other words, they would provide, if correctly applied, a resolution of the difficulties created by the two references to the jury's task to decide where the truth lies. But, unfortunately, the portions of the summing up to which objections have been taken were concerned very closely with the essential factual issues, and when considering those factual issues an allusion was made—it may not have been an intended reference, but an allusion was made—to something that directly concerns onus and standard of proof, and as the matters then discussed by the learned trial Judge were so central to the case, it was more than possible that the jury could have been misled, that they could have believed that they were doing their duty, notwithstanding the directions on onus of proof, by finding some reason for accepting one side or the other, and that that could well lead to a miscarriage of justice.
[23] R v Calides (1983) 34 SASR 355 at 358-359.
Von Doussa J in Harris v Mill[24] made reference to Calides in the following terms:
In a sense the key issue in many trials is credibility, but to pose the question as “who to believe” is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the inquiry will become: “Which of the parties giving the competing stories is to be preferred.” The preference of the victim's evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant's evidence does not provide positive proof of guilt. The preference of the victim’s evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim's evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant's guilt.
This body of authority highlights the danger of a tribunal of fact resolving a dispute between witnesses on the basis of the preference of one body of evidence to that of another.
[24] Harris v Mill (Unreported, Supreme Court of South Australia, Von Doussa J, 7 April 1988). See also Selig v Hayes (1989) 52 SASR 169 at 171-172; Gillan v Police (2004) 149 ACrimR 354 at 366.
An illustration of this erroneous approach formed the basis of an appeal from a magistrate to this Court in Prater v Rowbottom.[25] In this decision, White J considered an appeal against conviction on a charge of indecent behaviour contrary to section 23 of the Summary Offences Act 1953 (SA). The complainant lived in a house on the opposite side of the road to the defendant’s house. She complained that while she was standing at the letterbox near the front of her house, she saw the defendant standing at the front window of his house, facing toward her and masturbating himself. At the trial before a magistrate the complainant and the defendant gave evidence. The defendant denied the incident. The Magistrate ultimately found the charge proved. In the course of reaching this conclusion, the Magistrate found the complainant to be an honest, truthful and clear minded witness, and preferred her evidence to that of the defendant. The Magistrate observed:
It seems to me to be very strange that [the complainant] who appeared to be an honest, truthful and clear minded witness would come into court and perjure herself in order to assist the man over the road, Perry, in his vendetta with the defendant. … The account she gave me was a very real one for me. It was clear and believable and I am not persuaded by what the defendant said or any other material before the court that I should disbelieve it. I am satisfied beyond reasonable doubt that the account [the complainant] gave me was the truth.
[Emphasis added]
[25] Prater v Rowbottom (Unreported, Supreme Court of South Australia, White J, 12 March 1991).
On appeal, the defendant contended that the conviction was unsafe and unsatisfactory. It was submitted that the complainant’s evidence was inherently improbable and contradictory. It was further submitted that the emboldened passage of the Magistrate’s reasons, above, amounted to a reversal of the onus of proof. White J accepted these submissions and allowed the appeal and quashed the conviction. In the course of his reasons, his Honour found that the emboldened passage of the Magistrate’s reasons amounted to a “subtle implication of the reversal of the onus of proof”. His Honour continued:
It is possible that [the Magistrate] fell into the trap described by Wells J in The Queen v Calides (1983) 34 SASR 355 at 356: “On one approach to this case, it would appear [there were two bodies of evidence] that those two bodies of evidence were fundamentally opposed to one another and, as the learned Judge very properly pointed out to the jury, they could not both have been true on important matters”.
…
In the present case, the situation is not as black and white as it was in The Queen v Calides and the magistrate did not direct himself expressly in the form of the direction given in Calides case. However, the magistrate did say: “I am not persuaded by what the defendant said … that I should not believe it” (the complainant’s account).
This statement contains a subtle reflection of the error in Calides case. There was no onus of persuasion upon the defendant. He could have stood mute. The magistrate had to go further and make a positive finding that he accepted [the complainant’s] evidence to the exclusion of the defendant’s denials which he rejected completely. It is true that the magistrate said immediately after the above quoted passage that he was satisfied beyond reasonable doubt. Nevertheless, I am of the opinion that the finding and conviction is unsafe and unsatisfactory by reason of the difficulties of observation and other matters which I have mentioned and the possibility of some reversal of the onus of proof. I am not prepared to allow the conviction to stand.
It would appear that the approach taken by the Magistrate in the present proceeding is a manifestation of the error in Calides case. The Magistrate contrasted the unconsciously reconstructed evidence of the defendant and the other defence witnesses with that of the prosecution witness, Mr Madden, who did his best to be an honest and reasonable witness, but who did not always fully comprehend things he saw and heard. It is against this background that her Honour made a preference, and only that. At the very least, in my view there is a material risk that the Magistrate misapplied the onus and burden of proof.
The appeal on this ground is allowed. This conclusion is a sufficient basis on which to determine the appeal. However, as the matter has been fully argued it is appropriate to set out my views on the further grounds of appeal.
The Defence of Another – Section 15, Criminal Law Consolidation Act
As earlier observed, it was the defence case that the defendant engaged in the conduct the subject of the charge, in the defence of Mrs Nadler. Section 15 of the Criminal Law Consolidation Act provides a statutory defence to conduct committed in self-defence, or in the defence of another. The legislative history of the enactment of section 15 of the Criminal Law Consolidation Act, as a statutory form of self-defence, was noted recently by this Court in Martin.[26] Section 15(1) provides:
[26] R v Martin (2007) 99 SASR 213 at [11].
It is a defence to a charge of an offence if —
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
By section 15(3) of the Act, a defensive purpose includes an act in self-defence or in the defence of another:
For the purposes of this section, a person acts for a defensive purpose if the person acts —
(a) in self defence or in defence of another; or
(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
In this case, the defensive purpose which was raised by the evidence was the defence of another. Therefore, the issues that the Magistrate had to determine were the issues in sections 15(1)(a) and (b). Section 15(1)(a) requires a subjective assessment of the belief of the accused and a determination of whether that belief was genuinely held.[27] Section 15(1)(b) requires an objective assessment of the reasonableness of the response of the defendant having regard to the nature of the threat which the defendant subjectively and genuinely believed existed, and to all of the circumstances.[28] The onus is on the prosecution to negative any reasonable possibility of self-defence when the issue of self-defence is raised by some aspect of the evidence.[29]
[27] Police v Lloyd (1998) 72 SASR 271 at 276.
[28] Police v Lloyd (1998) 72 SASR 271 at 277.
[29] Vitro v R (1978) 141 CLR 88.
The Magistrate concluded that although the defendant genuinely believed his conduct to be necessary and reasonable for a defensive purpose (section 15(1)(a)), the defendant’s conduct was not reasonably proportionate to the perceived threat (section 15(1)(b)):
It is clear that the defendant saw [JS’s] behaviour escalating and he snapped. He genuinely believed he needed to go to the aid of [JS’s] mother before she got hurt. He lost all sense of proportion. He used far more force than could ever be reasonably necessary to deal with the threat to her that he perceived in the circumstances as he believed them to be. …
On appeal, the defendant complained that this finding was unreasonable and was not supported by the weight of the evidence.
The Magistrate’s critical finding of fact in relation to the precise acts constituting the assault the subject of the charge was as follows:
At that point, the defendant left the porch and walked quickly towards [JS] and his mother. He was red in the face. He grabbed the boy from behind, pinning his arms, and took him to the ground. [JS] began screaming. [Mrs Nadler] and [DS] told the defendant to stop but he continued to hold the boy down. They set about separating the defendant from the boy.
It is to be observed that this finding is not consistent with the prosecution evidence that the appellant grabbed JS in a headlock and delivered a series of strikes to his chest when he was on the ground. As earlier observed, this finding necessarily represents a rejection of the accounts given by both Stephen and Sylvia Madden. It is also to be noted that the Magistrate did not make any finding or evaluation of the seriousness of the threat perceived by the appellant. In considering the question of reasonable proportionality, her Honour did not assess and weigh the threat against the conduct.
The conduct of the defendant toward JS – grabbing him from behind, pinning his arms, taking him to the ground and holding him on the ground – was found by the Magistrate to have occurred “against the backdrop the defendant described in the police interview conducted on September 19th, 2005”. That “backdrop” included the defendant describing the following events relating to JS:
[H]e was extremely agitated, angry, verbally abuse [sic] from 3 o’clock that day. Continued the verbal abuse, continued the threats, he has been extremely hostile, his bicycle was stolen it would be about 7, 8 weeks ago and he is normally very verbally aggressive but since his bicycle’s been stolen he has been both verbally and physically extremely aggressive.
…
[H]e’s taken a steak knife to me on more than 1 occasion, he has hit me, he attempted to choke me with a pillow, he attempted to bite me the only way I was able to stop that was to use the palm on his forehead and he’s nearly my height, so that is not an easy task when he’s in his aggravated moods, he’s extremely strong, the verbal abuse has been daily, the physical abuse is probably on average 2, 3 times a week, especially the last 7, 8 weeks, but we have asked help. We have told Women and Children’s Hospital, he spent a week in the Women and Children’s Hospital, he … in the psychiatric unit, we have asked repeatedly for help, at least since 2002, because of his verbal and physical abuse and there’s a chain of things that they have diagnosed him with. He’s on medication to try and control his swings, we do know that he has this post traumatic stress among all the other problems he has and it is an extremely, extremely difficult situation.
Given the Magistrate’s finding about the acts constituting the physical contact between the defendant and JS, and given her acceptance of the “backdrop” against which that conduct occurred and her acceptance of the defendant’s genuine belief for the necessity of that conduct, the Magistrate’s conclusion that the defendant “lost all sense of proportion …[and] used far more force than could ever be reasonably necessary to deal with the threat to her that he perceived in the circumstances as he believed them to be”, is unreasonable and was not supported by the evidence or her Honour’s findings as to the nature of the alleged assault. The appeal should also be allowed on this ground.
Exclusion of Evidence of the Complainant – Section 21 of the Evidence Act 1929 (SA)
The defendant challenges the Magistrate’s ruling pursuant to section 21(3) of the Evidence Act 1929 (SA), excusing JS from giving evidence at trial. Section 21 of the Evidence Act is in the following terms:
(1)A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.
(2)Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.
(3) Where it appears to a court to which an application is made under subsection (2)—
(a) that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b) that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court.
(3a)If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly.
(4) Where a court is constituted of a judge and jury—
(a) an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and
(b) the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge.
(5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness—
(a) is aware of his or her right to apply for an exemption under this section; or
(b) is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.
(6)This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.
(7) In this section—
“close relative” of an accused person means a spouse, domestic partner, parent or child;
“domestic partner” means a person who is a domestic partner within the meaning of the Family Relationships Act 1975 , whether declared as such under that Act or not;
“spouse”—a person is the spouse of another if they are legally married.
Section 21 was introduced into the Evidence Act in 1983,[30] and the definition subsection was amended (in a way which is not presently material) in 2007.[31] In T,T,[32] I canvassed the legislative history to the enactment in some detail.
[30] Evidence Act Amendment Act (No.2) 1983 (SA), section 4.
[31] Statutes Amendment (Domestic Partners) Act2006 (SA), section 97(2).
[32] R v T,T (2004) 90 SASR 567 at [36]-[39].
It can be seen that an inquiry under section 21(3) involves a two-stage process. First, it must be determined whether, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of serious harm either to the relationship between the prospective witness and the accused, or of a material, emotional or psychological nature to the prospective witness. Secondly, it must be determined whether, having regard to the nature and gravity of the alleged offending and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk.
In my view, issues of competency and compellability of witnesses involve the consideration of preliminary facts which are conditions precedent to admissibility of evidence, such that the civil standard of proof applies.[33] In Wendo,[34] Taylor and Owen JJ observed:
In criminal trials, as in civil cases, questions of fact frequently arise which must be determined by the trial judge before he decides whether to admit evidence for the consideration of the jury. Confessional statements are but one illustration of the type of evidence the tender of which may give rise to preliminary questions of fact which the judge must decide for himself. Other illustrations were given by Lord Denman C.J. in Doe v Davies [(1847) 10 Q.B. 314 [116 E.R. 122]] where his Lordship said: “There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus an oath, or its equivalent, and competency, are conditions precedent to admitting viva voce evidence; and the apprehension of immediate death to admitting evidence of dying declarations; and search to secondary evidence of lost writings; and stamp to certain written instruments: and so is consanguinity or affinity in the declarant to declarations of deceased relatives” [(1847) 10 Q.B., at p. 323 (116 E.R., at p. 125)].
But proof of the fulfilment of these or any other conditions precedent to the admission of evidence is not required to be given beyond reasonable doubt. As Starke J said in Cornelius v R [(1936) 55 CLR 235]: “The judge merely decides whether there is prima facie any reason for presenting the evidence at all to the jury” [(1936) 55 CLR, at p. 239]; and in Sinclair v R [(1946) 73 CLR 316] the same learned judge said: “But then it was contended that the mere possibility that the confessions were the result of a disordered mental condition was sufficient to exclude them from evidence. Again I am unable to agree. A judge is not bound to exclude a confession from evidence because of such a possibility. He is entitled and bound to consider the probability of the mental condition affecting the truth of a confession in all the circumstances of the case and to decide whether there is prima facie reason for presenting it to the jury”[(1946) 73 CLR at 328].
We have no doubt that this correctly states the rule whether the question arises in the course of the case for the Crown or during the evidence for the defence. If the judge decides that there is a prima facie reason for admitting the evidence, it is for the jury or, in a case such as this, the judge sitting as a jury to determine what weight is to be given to it. It is then that the standard of proof beyond reasonable doubt has to be applied and it will often happen that, in applying that standard, the tribunal of fact will properly be asked to take into account evidentiary material placed before it which has earlier been elicited on the voir dire.
[33] Wendo v R (1963) 109 CLR 559; Demirok v R (1977) 137 CLR 20 at 28-9 (Gibbs J) See also JD Heydon, Cross on Evidence (6th ed, 2000) 11030.
[34] Wendo v R (1963) 109 CLR 559 at 572-573.
These observations are apposite in considering the appeal.
Error in Process of Inquiry
Prior to the Magistrate excusing JS from giving evidence, the following exchange took place between her Honour and JS:
Her Honour: How old are you now.
JS: 13.
Her Honour: Where do you live?
JS: Taperoo.
Her Honour: Who do you live with?
JS: Mum.
Her Honour: What is your mum’s name?
JS: Janet.
Her Honour: Who is Janet married to?
JS: Craig.
Her Honour: Craig is your step-father.
JS: Yes.
Her Honour: How do you get on with Craig.
JS: Good.
Her Honour: We’ve spoken this morning, haven’t we.
JS: Yes.
Her Honour: And you’ve heard, is it your position that you do not want to give evidence against your step-father, Craig.
JS: No I don’t.
Her Honour: Is it the case that you feel that your relationship with your step-dad will be damaged.
JS: Yes.
Her Honour: Did you say something to me this morning about the relationship with your step-dad.
JS:Yes.
Her Honour: Do you know what you told me.
JS: It was already damaged.
Her Honour: That is as far as you’re concerned, completely true.
JS: Yes.
Her Honour: Are you able to tell me how it’s been damaged.
JS: Because I can’t see him anymore. I do love him Craig.
Her Honour: You can’t see him anymore and you love him, and it makes you cry just thinking about how you can’t see him anymore.
JS: Yes.
Her Honour: I am satisfied pursuant to section 21(3)(a) by the child’s reaction being asked about that.
JS’s “reaction” referred to by her Honour was described in her reasons as his “becom[ing] abnormally and deeply distressed”.
The Magistrate’s approach, as demonstrated in the extract from the transcript, reveals that although her Honour addressed the first stage of the inquiry under section 21(3), she failed to address the second stage. It is to be observed that the discretion to exempt a witness only arises when the preconditions identified in section 21(3)(a) are satisfied, and when the Judicial Officer reaches the conclusion under section 21(3)(b), that there is insufficient justification for exposing the prospective witness to the specified risk. Once those conditions are satisfied, the Court’s discretion is enlivened.
Other provisions of the Evidence Act deal with the giving of evidence by children. In particular, section 13 allows the Court to make special arrangements for the taking of evidence from a vulnerable witness. Section 13 provides:
(1)If it is practicable and desirable to make special arrangements for taking evidence from a witness in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom, or for any other proper reason, the court should, subject to subsections (3) and (4), order that special arrangements be made for taking the evidence of that witness.
(2) The Court may, for example, make orders of the following kinds:
(a) an order that the evidence be given outside the courtroom and transmitted to the courtroom by means of closed circuit television;
(b) an order that a screen, partition or one-way glass be placed to obscure the witness's view of a party to whom the evidence relates or some other person;
(c) an order that the witness be accompanied by a relative or friend for the purpose of providing emotional support.
(3)An order must not be made under subsection (1) if the order would prejudice any party to the proceedings.
(4) An order must not be made under subsection (1) if its effect would be—
(a) to relieve a witness from the obligation to give sworn evidence; or
(b) to relieve a witness from the obligation to submit to cross-examination; or
(c) to prevent the judge, or (in the case of a trial by jury) the jury, from seeing and hearing the witness while giving evidence.
(5)If the effect of an order under subsection (1) would be to prevent the defendant in criminal proceedings from seeing and hearing a witness while giving evidence, the order may only be made if there is no other practicable way to protect the witness.
(6)If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the parties, the judge and (in the case of a trial by jury) the jury while the witness is giving evidence.
(7)If, on a trial by jury, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
(8)An order under this section may be made, varied or revoked on the court's own initiative, or on the application of a party or witness.
(9)If evidence is to be given in criminal proceedings by a vulnerable witness, the court should, before evidence is taken in the proceedings from the witness, determine whether an order should be made under this section.
(10) In subsection (9)—
“vulnerable witness” means—
(a) a witness who is under 16 years of age; or
(b) a witness who suffers from an intellectual disability; or
(c) a witness who is the alleged victim of a sexual offence to which the proceedings relate; or
(d) a witness who is, in the opinion of the court, at some special disadvantage because of the circumstances of the case, or the circumstances of the witness
At the time of the trial, JS was 13 years old. He was clearly a vulnerable witness within the meaning of section 13(10)(a). He was also possibly a vulnerable witness within the meaning of section 13(10)(b).
On 2 April 2007, the trial was called on for hearing, but was adjourned to the following day to allow JS to obtain independent legal advice as to whether he could be compelled to give evidence. At the conclusion of that hearing the Magistrate made the following ex tempore remarks:
When [JS] was brought into the court to give evidence he became extremely distressed about being compelled to give evidence before any attempt was made to swear him in, and then it came to light that the person providing emotional support for him in the court room was also a possible defence witness.
It is not possible to arrange for a video court today. …
…
…. The prosecutor has pointed out that I could make an order pursuant to section 21 subsection 3 of the Evidence Act. That is not a course that I am not [sic] comfortable with taking when [JS] has had no legal advice. When there has been no discussion about vulnerable witness being arranged with the child by the investigating officer and, in particular, no video unit arrange [sic] (should that be required). Although, in this case that may not be the answer, and when I am not in possession of statements and in a position to make such a ruling nor can be in that position without by doing so disqualifying myself from hearing the trial in the way the Pre-trial Conference Magistrate often becomes disqualified from hearing the trial.
I’ve drawn the attention of both counsel to the case of the 1983 High Court of the Queen v Whitehorn in case there are any equivalent issues apparent to them on the face of the statements of witness to date.
Although the Magistrate briefly alluded to the possibility of protection orders under section 13 of the Evidence Act, it does not appear that her Honour was invited to consider this matter further during the course of the trial. The Magistrate should have done so. In my view, a protective order was an appropriate response to protect JS from a risk of serious harm to the relationship between JS and the appellant, and to protect JS from a risk of material emotional or psychological harm.
The Magistrate’s failure properly to undertake the process of inquiry under section 21 of the Evidence Act, and failure to consider the appropriateness and utility of a protection order under section 13 of the Evidence Act, is an appealable error that has resulted in a miscarriage of justice. This ground of appeal is allowed.
An Ultra Vires Ruling
The defendant contended that the Magistrate’s ruling pursuant to section 21(3) of the Evidence Act was made beyond power, as section 21 had no application to the circumstance of the witness being the step-child of the defendant.
“Close relative” is defined in section 21(7) of the Evidence Act to include a child. Section 4 defined “child” to mean a “person under the age of 18 years”. “Young child” is defined in section 4 to be “a child of or under the age of 12 years”.
There does not appear to be any direct authority on whether the meaning of “child” in section 21 of the Evidence Act includes a “step-child”. This issue was recently considered by the Supreme Court of the Australian Capital Territory in YL[35] and the Court of Appeal of the Supreme Court of Victoria in RGP.[36]
[35] R v YL (2007) 187 FLR 84.
[36] R v RGP (2006) 167 A Crim R 468.
In YL, the accused was charged with assaulting her stepson (“the complainant”), who at the time of the alleged offending was six years old. At trial, counsel for the prosecution, the accused and the complainant appeared. Separate representation was provided to the complainant to ensure that the child’s interests were protected. During the course of the accused’s opening submissions, a concern was expressed about the likelihood of the complainant suffering significant stress by being compelled to give evidence against his stepmother, the accused. Evidence on the voir dire was given by a child psychiatrist who expressed the opinion that the complainant could suffer very substantial stress in giving evidence. Subsequently, counsel for the complainant made an objection on the complainant’s behalf pursuant to section 18 of the Evidence Act 1995 (Cth), to him giving evidence on behalf of the prosecution. The prosecution submitted that the child had no right to make such an objection and insisted that he should be compelled to give evidence.
Section 18 concerns the compellability of spouses and others in criminal proceedings and relevantly provides:
(1) This section applies only in a criminal proceeding.
(2)A person who, when required to give evidence, is the spouse, de facto spouse, parent or child of a defendant may object to being required:
(a) to give evidence; or
(b) to give evidence of a communication between the person and the defendant;
as a witness for the prosecution.
(3)The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
(4)If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.
(5)If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.
(6)A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given.
(7)Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
(a) the nature and gravity of the offence for which the defendant is being prosecuted;
(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;
(d) the nature of the relationship between the defendant and the person;
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.
It is to be observed that in clause 10(1) of Part 2 of the Dictionary to the Act, “child” is defined in the following terms:
(1) A reference in this Act to a child of a person includes a reference to:
(a) an adopted child or ex‑nuptial child of the person; or
(b) a child living with the person as if the child were a member of the person’s family.
[Emphasis added]
A step-child fall may within the definition in clause 10(1)(b).
Section 19 provides certain exceptions to the application of section 18 in criminal proceedings:
Section 18 does not apply in proceedings for an offence against or referred to in the following provisions:
(a) an offence against a provision of Part III or IIIA of the Crimes Act 1900 of the Australian Capital Territory, being an offence against a person under the age of 16 years;
(b) an offence against section 133, 134, 135, 139 or 140 of the Children's Services Act 1986 of the Australian Capital Territory;
(c) an offence that is a domestic violence offence within the meaning of the Domestic Violence Act 1986 of the Australian Capital Territory or an offence under section 27 of that Act.
[Emphasis added]
Crispin J concluded that the section 18 objection could not be sustained on the ground that section 19 of the Evidence Act expressly provided that section 18 had no application to offences of domestic violence,[37] and that if shown to be sufficiently competent, the complainant would be a compellable witness. His Honour further held that the Court retained a discretion in relation to the exercise of coercive powers available to compel witnesses to give evidence and that an order would not be made requiring the complainant to be brought into court against his will. In reaching this conclusion, it appears that his Honour considered that prima facie, section 18 applied to the complainant notwithstanding that he was the accused’s step-child as opposed to her natural child. His Honour relevantly observed:[38]
At face value, these provisions seem to provide a sound legislative basis for the resolution of issues of this kind. They permit courts to balance the public interest in ensuring the admission of relevant evidence and the effective conduct of criminal prosecutions against the public interest in ensuring that witnesses who might otherwise be compelled to give evidence against their own spouse or child do not suffer undue harm, either by the psychological impact of doing so or by the damage that may be caused to relationships within families. There are, no doubt, many cases in which the gravity of the alleged offences and the potential importance of the evidence would readily lead a court to conclude that compulsion was required even if some such harm were to be suffered as a consequence. However, there are other cases in which the balance might be tipped just as strongly in favour of protecting a distraught child or some other emotionally vulnerable witness and yet other cases, in which the competing considerations may be finely balanced. In each such case the Court is ultimately required to make a judgment in the light of the circumstances revealed by the evidence after hearing argument on behalf of both the Crown and the witness.
In the present trial I was informed that the case that the Crown sought to bring against the accused was substantially dependent upon evidence from the child. It had not been suggested that the offences had caused him any permanent or serious injury, though the allegations as to the conduct of the accused were certainly disturbing. Furthermore, the Crown prosecutor had fairly stated that in the event of a guilty verdict he would not be seeking to have the accused convicted. This involved a concession that, in that event, it would be appropriate for the charges to be dismissed pursuant to s 402 of the Crimes Act. This provision enables the Court to discharge an offender, either conditionally or unconditionally, if satisfied that the charge is proved but of the opinion that, having regard to the factors stipulated in the section, including his or her character, antecedents, age, health or mental condition, it is inexpedient to inflict any punishment other than a nominal one, or that it is expedient to release the person on probation. I was, of course, conscious of the public interest in enforcing the criminal law and of the need to ensure that offenders did not escape prosecution for domestic violence merely because other members of the families were reluctant to give evidence against them. However, there was no evidence that the child had been improperly influenced by the accused and in my opinion, the wishes and interests of any potential witness of his age, let alone the alleged victim, should be given due consideration. Furthermore, as I have mentioned, there would have been a risk that the child would suffer very substantial stress if forced to give evidence and at least some risk that he might ultimately suffer significant harm.
In these circumstances I concluded that there were strong grounds for the objection under s 18 if that section applied to the proceedings.
[37] Applying R v Wright (2004) 155 ACTR 50.
[38] R v YL (2007) 187 FLR 84 at [15]-[17].
As earlier noted, the Commonwealth legislation provided an extended definition of the word “child”, to include a child living with a person as if the child were a member of the person’s family. It is in this context that Crispin J concluded that there were strong grounds for the objection under section 18. It is of particular relevance that the provisions of the Evidence Act under consideration in this appeal do not contain an extended definition in those or similar terms.
In RGP,[39] the accused was convicted and sentenced on one count of incest against his step-daughter, contrary to section 44 of the Crimes Act 1958 (Vic). Section 44 made it an offence to take part, inter alia, in an act of sexual penetration with a person’s known “child, or other lineal descendant or his or her step-child”. This extended definition of child was restricted to section 44 of the Crimes Act. Elsewhere in the statute, the word “child” does not have such an extended definition.
[39] R v RGP (2006) 167 A Crim R 468.
In an application for leave to appeal against both conviction and sentence, an issue arose as to whether section 400 of the Crimes Act permitted the accused’s step-children from giving evidence against him. Section 400 of the Crimes Act relevantly provides:
(3)In any proceedings against the accused, the presiding judge or magistrate shall exempt the accused's wife, husband, mother, father or child (in this section called the proposed witness) from giving evidence on behalf of the prosecution, either generally or in relation to a particular matter, if, but only if, he is satisfied upon application made to him in the absence of the jury (if any) that, having regard to all the circumstances of the case, the interest of the community in obtaining the evidence of the proposed witness is outweighed by-
(a) the likelihood of damage to the relationship between the accused and the proposed witness; or
(b) the harshness of compelling the proposed witness to give the evidence; or
(c) the combined effect of the matters mentioned in paragraphs (a) and (b).
(4)Without restricting the generality of the phrase “all the circumstances of the case” in subsection (3), such circumstances shall include-
(a) the nature of the offence charged;
(b) the importance in the case of the facts which the proposed witness is to be asked to depose to;
(c) the availability of other evidence to establish those facts and the weight likely to be attached to the proposed witness's testimony as to those facts;
(d) the nature, in law and in fact, of the relationship between the proposed witness and the accused;
(e) the likely effect upon the relationship and the likely emotional, social and economic consequences if the proposed witness is compelled to give the evidence; and
(f) any breach of confidence that would be involved.
Callaway JA (with whom Redlich JA and Smith AJA agreed) concluded that “child” in section 400 did not include a step-child. His Honour observed:[40]
At common law, a son or daughter is both competent and compellable to give evidence against his or her parent. In some circumstances that rule may operate harshly. Accordingly, Parliament has made the following provision in s 400 of the Crimes Act:
…
It was submitted below, and again in this Court, that “child” in s 400 includes a step-child. It was unnecessary to resolve that question in order to decide the application for leave to appeal against conviction. Ground 1 having succeeded, ground 2 could make no difference. In particular, success on the latter ground would not entitle the applicant to a judgment and verdict of acquittal. It is necessary to decide the question presented by ground 2 solely because it may arise at the new trial, if the Director proceeds with that trial. The Crown case was not strong and the applicant has already served 14 months of the sentence.
In my opinion “child” in s 400 does not include a step-child. The only basis for an expansive reading would be purposive construction, but the purpose to be served is not clear. The community has an interest in protecting family relationships, including the relationship between a parent and step-child, but the community also has an interest in witnesses being compelled to give evidence in criminal proceedings. The balance is to be struck by the legislature, not by the courts. Parliament has used language which, according to its natural meaning, does not include a step-child. For what it is worth, there are other provisions of the Crimes Act in which step-children are expressly mentioned. As it happens, they include s 44, the prohibition against incest.
It is to be recognised that these remarks addressed different legislation. However, because of the similarities of that legislation to the South Australian Evidence Act, the authority does provide a measure of support for a narrow construction of the words “child” and “close relative”.
[40] R v RGP (2006) 167 A Crim R 468 at [14]-[16] (footnotes omitted).
Indirect support for this reasoning can be found in the approach taken to the meaning of “child” in legislation dealing with testator’s family maintenance. In Popple v Rowe,[41] the Victorian Court of Appeal considered the meaning of the word “children” in section 91 of the Administration and Probate Act 1958 (Vic). Section 91 at that time provided: [42]
[W]here any person (hereafter in this Part called “the deceased”) dies, and the distribution of his estate effected by his will (if any), ... is such as not to make adequate provision for the proper maintenance and support of the deceased's widow widower or children the Court may, on application by or on behalf of the said widow widower or children, order that such provision as the Court thinks fit shall be made out of the estate of the deceased for such widow widower or children.
[41] Popple v Rowe [1998] 1 VR 651.
[42] Section 91 was replaced with a new provision by section 55 of the Wills Act 1997 (Vic) with effect from 20 July 1998. The purpose of the new section, as demonstrated by the second reading speech was as follows:
The Court there considered that the word “children” in the legislation referred to natural children and did not include step-children. Winneke P observed:[43]
[43] Popple v Rowe [1998] 1 VR 651 at 659-660.
Contrary to His Honour's view, it is my opinion that the word “children” does have a fixed, rather than protean, meaning and it is confined to applicants who have a blood relationship to the deceased unless statutory provision has been made to the contrary. I have formed that conclusion for the following reasons:
(a)If the word “children” in s. 91 of the Act is to be given a flexible meaning having regard to its context and surrounding circumstances, likewise the words “widow” and “widower” must be given a similar construction. … Such a construction in my view sits uneasily with specific extended definition given to the word “widow” in s. 91. The construction contended for by [the respondents] in my view will create uncertainty with regard to those who have standing to make application where, in my opinion, certainty was intended. The legislation may be remedial in the sense that I have already attributed to it, but it does invest the court with the power to interfere in the freedom of the deceased to dispose of the estate as he or she wishes. The remedial nature of the Statute enables the Court to exercise its jurisdiction benevolently in the interests of those entitled to claim, but it should not be expanded to the point where uncertainty as to eligible applicants will itself contribute to the defeat of the testator's freedom of disposition. [Counsel for the respondents] submitted that all stepchildren, whether of a subsisting marriage at death or not, should be eligible to claim and that it would be for the court in the exercise of its jurisdiction to determine whether the claim is sustainable in the circumstances. Such a construction would in my view produce the uncertainty which the legislation seeks to avoid. It is for this reason that if the classes of eligible applicants are to be broadened to include stepchildren it must be a matter for the legislature. Views may well differ as to whether a “stepchild” is to be regarded as a “child” of the stepfather and, if so, whether any qualifications should be imposed upon the eligibility of such a stepchild to make a claim. In the past the Victorian Parliament has been careful to express in statutory form any expansion to the classes of persons eligible to claim under Pt IV of the Administration and Probate Act 1958 or its statutory predecessors. Thus, statutory amendments have been made to broaden the class of widow and children who may claim. “Widows” now include “any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony ...” (see s. 91 Administration and Probate Act 1958, as amended by Administration and Probate (Family Provision) Act 1962). The range of children now entitled to claim includes adopted children (see s. 53 Adoption Act 1984) and illegitimate children (see Status of Children Act 1974, s. 7). The caution with which the legislature has acted to expand the classes of eligible claimants is, in my view, consistent with the words “widow, widower or children”, where used in s. 91, bearing a technical, rather than popular or flexible meaning.
(b)To this point such authority and learned commentary as exists supports the view that a stepchild is not entitled to claim under Pt IV of the Administration and Probate Act: Barrett v Thurling (1984) 2 NSWLR 685; de Groot & Nickel, Family Provision in Australia and New Zealand, (1993), p. 90; Dickey Family Provision after Death, (1992), pp. 32-3). Indeed, as Brooking JA has already pointed out, a “discussion paper” prepared in July 1994 for the Attorney-General's (Vic) Law Reform Advisory Council on the desirability of reforming Pt IV of the Administration and Probate Act 1958 proceeded on the clear view that the legislation currently precludes stepchildren as applicants. [Counsel for the respondents], in support of his submission that “children” should be afforded a flexible construction, referred us to some authorities where courts had been prepared to take a wide and popular view of the word “family” to include de facto spouses and their children in interpreting particular pieces of legislation or in interpreting the word “children” where used in a testator's will: Dyson Holdings Ltd v Fox [1976] 1 QB 503 at 508, per Lord Denning, MR; Brock v Wollams [1949] 2 KB 388 at 394; Harris v Ashdown (1985) 3 NSWLR 193, per Kirby, P at 200). With respect, I do not find these authorities of particular help in interpreting the meaning to be ascribed to the word “children” in s. 91 of the Administration and Probate Act 1958.
I am accordingly of the view that the word “children” in Pt IV of the Administration and Probate Act bears the meaning which it has always borne (subject to statutory exception) and is not to be construed as having a popular, loose or ambulatory meaning. In my view it excludes “stepchildren” as eligible applicants.
These observations were applied by this Court in McGuffie v Korczynski.[44] In that decision, Nyland J considered the meaning of the word “child” in the Inheritance (Family Provision) Act 1972 (SA). An issue arose as to whether the meaning of “child” was restricted only to biological children. Nyland J concluded that the meaning of “child” was restricted to biological children, observing:[45]
To adopt the comments of Winneke P in Popple v Rowe the construction contended by the plaintiffs would, in my opinion, “create uncertainty with regard to those who have standing to make application where … certainty was intended” ... The word “children” should therefore bear "the meaning which it has always borne (subject to statutory exception) and is not to be construed as having a popular, loose or ambulatory meaning". The plaintiffs are therefore excluded as eligible applicants.
[44] McGuffie v Korczynski (2003) 228 LSJS 79.
[45] McGuffie v Korczynski (2003) 228 LSJS 79 at [65].
The terms of section 21 of the Evidence Act make reference to the competence and compellability of a close relative of a person charged with an offence to give evidence at the trial. Section 21 is in aid of the criminal law and the criminal trial process. It is established that the operation of the criminal law should be as certain as possible.[46] This principle has been recognised by the High Court to have application in the interpretation of statutes which address the criminal law and criminal process. In Taikato,[47] Brennan CJ, Toohey, McHugh and Gummow JJ, when considering the interpretation of section 545E of the Crimes Act 1900 (NSW), observed:
The operation of the criminal law should be as certain as possible. If the interpretative choice is between making a value judgment and applying a rule, a court exercising criminal jurisdiction should prefer the rule.
[46] Boral Gas(NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 at 206 (Hungerford J).
[47] Taikato v R (1996) 186 CLR 454 at 466.
There is a need to recognise that when interpreting section 21, the provision may well affect the trial of the person charged and may have an impact on the verdict and, as a consequence, the person’s liberty. In these circumstances, where ambiguity arises, a narrow interpretation is to be preferred.[48] In determining the meaning of a statute addressing the criminal law or the criminal process, the ordinary rules of construction must be applied. If, however, the language of the statute remains ambiguous, that ambiguity or doubt may be resolved in favour of the subject – in this case the person charged.[49]
[48] Bailey v R (1994) 71 A Crim R 355; Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137 at 142, citing Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 at 358.
[49] Beckwith v R (1976) 135 CLR 569 at 576.
If the definition of “child” extended beyond the natural or adopted child[50] of a person, considerable difficulty would be confronted in determining the reach of the section. For example, it would be unclear whether it extended to a step-child, a child of a de facto relationship, a child the subject of long-term care, or a foster child. Counsel for the prosecution was unable to articulate any workable test for determining what relationship would allow the conclusion that a person was a child within the meaning of the definition.
[50] By section 9(1) of the Adoption Act 1988 (SA), where an adoption order is made, “the adopted child becomes in contemplation of law the child of the adoptive parents and ceases to be the child of any previous birth or adoptive parents”.
The legislation of the different States, the subject of authorities mentioned earlier in these reasons, demonstrates the legislative techniques used to extend and expand the definition of “child”. In the Evidence Act, there is no attempt to expand the meaning of child, beyond that of natural or adopted child.
In my view, the word “child”, appearing in section 21 of the Evidence Act, is a reference to a natural child or an adopted child, but does not include a step-child. Accordingly, JS was not a “child” within the meaning of section 21, and her Honour’s exercise of that discretion was in error. Even if JS was within the scope of section 21, her Honour’s exercise of her discretion miscarried. This ground of appeal is also allowed on this basis.
Conclusion
This appeal is allowed. The Magistrate erred in her application of the onus and standard of proof. Her simple preference of the evidence of one witness against others was not an appropriate exercise in reaching a conclusion of guilt beyond reasonable doubt. In addition, the Magistrate’s conclusion as to what occurred did not accord with the prosecution witnesses’ evidence. For this reason alone, the trial process miscarried. Further, the Magistrate failed properly to address the defence that the defendant acted in self-defence of another. Finally, the Magistrate was not entitled to exclude JS under section 21 of the Evidence Act from giving evidence. For all of these reasons, the finding of guilt is to be set aside.
I have given consideration as to whether, in all of the circumstances, the complaint should be dismissed. The following matters are relevant to the exercise of my discretion.
Although the Magistrate’s approach to the evidence was unsatisfactory, she did make a finding of fact that the defendant forced JS to the ground and held him there for a period of time. The evidence was overwhelming that JS was a child who had been physically violent toward his mother. There was a substantial body of evidence that at the time of the incident, JS was behaving in a physically threatening manner toward his mother, sufficient to justify his restraint. Although JS was taken to the Women’s and Children’s Hospital, apart from emotional upset, there was no evidence that he sustained any physical injury whatsoever. In the brief evidence given by JS at the trial, it is apparent that he still wished to have contact with the defendant, and continued to have affection for him. It appears unlikely that JS would wish to give evidence against the defendant at any future trial. Having regard to the evidence and the onus on the prosecution to negative the defence of the defence of another, I have been left with the conclusion that the prosecution had not disproved beyond reasonable doubt a reasonable hypothesis consistent with innocence.
A significant period of time has elapsed in this matter. Almost three years have passed since the incident the subject of the charge. The trial before the magistrate was heard over 12 months ago. It is also relevant matter that although a finding of guilt was made against the defendant, no conviction was recorded. The beneficial nature of such an approach is well accepted.[51]
[51] See eg. R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487 at 491 (Thomas and White JJ).
In all of these circumstances, I have reached the conclusion that there should not be a retrial and that the complaint should be dismissed. Accordingly I order that the orders of the Magistrate be set aside and that the complaint be dismissed.
Orders
1. The appeal is allowed.
2. The Magistrate's finding of guilt is set aside.
3. The orders made by the Magistrate are set aside.
4.The complaint is dismissed.[52]
[52] Pursuant to section 69 of the Summary Procedure Act 1921 (SA).
At present, part IV of the Administration and Probate Act 1958 enables a testator's family maintenance application to be made to the County Court or Supreme Court by a deceased's widow, widower or children requesting the court to make provision out of the estate of the deceased for the proper maintenance and support of the applicant.
These provisions are quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased's estate from making a claim. The need for amendments to the act to enable a wider category of persons to make testator's family maintenance applications has been recognised for a while. The Labor government introduced two bills to address this situation but neither bill proceeded as a result of concerns that the amendments proposed would result in unfair outcomes for certain parties.
This bill introduces amendments to the act to enable a wider group of people to apply to the court for testator's family maintenance. The bill empowers the court to make an order for provision out of the estate of a deceased person for the maintenance and support of a person for whom the deceased had responsibility to make provision. The bill does not include a list of eligible applicants for testator's family maintenance, instead leaving it to the court to determine on a case-by-case basis whether provision should be made for a particular applicant, which is a more equitable method of dealing with testator's family maintenance applications.
(Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 436 (Jan Wade, Attorney-General).
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