R M Watt v KC (No 2)
[2020] ACTMC 5
•17 April 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R M WATT v KC (No 2) |
Citation: | [2020] ACTMC 5 |
Hearing Date(s): | 18-19 June 2018, 19-20 November 2018, and 23 April 2019 |
DecisionDate: | 17 April 2020 |
Before: | Special Magistrate Hunter OAM |
Decision: | [40] – [54] |
Catchwords: | CRIMINAL LAW – PARTICULAR OFFENCES – EVIDENCE Common assault – Family violence – Self Defence – Lawful Chastisement – Evidence generally. |
Cases Cited: | Cattanach v Harrison [2016] ACTSC 60 Collins v Wilcock [1984] 1WLR 1172 R M Watt v KC [2019] ACTMC 3 Viro v The Queen (1978) 141 CLR 88 Zecevic v DPP (1987) 162 CLR 645 |
Parties: | R M Watt (Informant) KC (Defendant) |
Representation: Solicitors: | Ms V Conliffe (Informant) Mr H Jorgensen (Defendant)
Legal Aid ACT (Defendant) |
File Number(s): | CC16/12825 |
SPECIAL MAGISTRATE HUNTER OAM:
The Proceedings
The Defendant has been charged with:
a) CC 16/12825 common assault committed on 3 December 2016 against MC.
This matter relates to the decision R M Watt v KC [2019] ACTMC 3 in which I handed down findings in regard to three other charges before the Court. This matter was reserved for decision after hearing further evidence from the Defendant on 23 April 2019.
The charge described above is colloquially referred to as the “book incident”. I note the Prosecution when opening in relation to this charge particularised it as; MC was angry with his sister TC over a device and an argument ensued. The Defendant came in to see what was happening and MC asked his father, ‘do you want a fight’, and the Defendant said, ‘probably not’. The Defendant then picked up a book and hit him on the head with it.
I heard evidence from the Defendant in relation to this charge. I refer to paragraph 22 to 23 in R M Watt v KC [2019] ACTMC 3. That is, the evidence from MC, TC and UC in relation to this charge. I also note that MC said in his evidence in chief that he and his sister were fighting over a device, she was screaming at him, his father came in and MC was making a calming sound and his father said, ‘do you want a fight’. MC says he said, ‘probably not’, and his father then hit him in the head with a book. MC gave evidence before me and demonstrated that his father was holding a hard-covered book with both hand, he raised it up and hit him on the head with the book. MC said he had his hands on his head to protect himself.
MC denied in cross-examination that the Defendant asked him to stay where he was, given MC was so angry. MC denied that the Defendant placed the book on his head to prevent him from getting up. MC denied that his father merely rested the book on his head, or said, ‘just stay there’. It was suggested to MC that at the time of these incidents he did not get on with his father as well as he did in the past which he accepted.
I note that the Prosecutor asked TC no questions in relation to this incident.
Further Evidence
The Defendant
The Defendant gave evidence in Court before me on 23 April 2019. The Defendant said that his son had been missing and his wife found him at one of his friend’s place. MC was at home on the 3 December around 18.30 hours.
The Defendant said that he entered the lounge room to collect a book and heard his two children arguing about a device. Essentially the daughter had it and the son wanted it. It was common place for the two to be arguing. The son was using vile language calling his sister, ‘a skanky bitch’, and, ‘I hope you die’, and flipped the bird at her. MC’s behaviour toward TC was getting worse in his view.
The Defendant said that he was getting Pearce’s Commonwealth Law book from a shelf and his son was sitting near the shelf. As he went to leave MC got up and said, ‘do you want a fight’. Given his demeanour and past threatening behaviour, as he was getting out of the chair the Defendant placed the book on top of his head to prevent him from getting up, telling him to, ‘stay down’. This was in an effort to end the dispute between the siblings.
The Defendant denied hitting MC by raising his hands with the book and using downward force on MC’s head. The Defendant said that after he placed the book on his head he then walked off with the book to another room. The Defendant denied that MC said anything to him.
The Defendant said that MC stayed at home that night, but agreed that MC would leave without permission and stay away for the night.
The Defendant said that at the time of the incident his range of movement was limited because of an injury he had sustained many years before. The limit was approximately 70%. Therefore, he could not have raised the book as described by MC.
In cross-examination the Defendant agreed that he was in the second lounge room, he could not recall if the door was shut, but recalls that the reason to go into the lounge room was to retrieve the book. The Defendant said that he had not heard the verbal argument between the siblings prior to entering the room.
The Defendant disagreed that if the argument was loud he would have heard it. The Defendant agreed that the louder the sound the more likely the sound would travel between the rooms.
The Defendant denied that he was “having a glass of wine” at the time. The Defendant said that he heard ‘chatter’ and it was between the pair ‘50-50’. The Defendant denied that his memory was not clear through the effluxion of time and said it was ‘clear enough’.
The Defendant agreed that he walked in and MC was near the bookshelf and TC was on the opposite side of the room with a distance of four to five metres between. The Defendant said that his intention was to get the book and it was only when he perceived MC getting up that he intervened.
The Defendant agreed that he was not in fear but that his purpose was to stop the argument between the pair. He also said that his purpose was to stop any physical confrontation between him and MC therefore action was needed. The Defendant agreed that MC had not spoken or been aggressive toward him but given his past experience with him in these situations he acted in the way he did.
The Defendant agreed that he could have walked away as he was only a few steps from leaving the lounge room but at the time he considered the action to be appropriate. The Defendant disagreed that he could have merely placed his hand on his head, because of MC’s manner.
The Defendant agreed that he placed downward pressure with the book, but denied he used significant force. The Defendant said he did not see MC put his hands on his head and does not believe he did so. The Defendant denied using force as a result of his annoyance at MC.
The Defendant said that MC was frequently developing more aggression and acting out of all proportion to the situation. The Defendant disagreed that was a normal teenage child’s behaviour. The Defendant agreed that he was also protecting his daughter as she was innocent.
The Defendant denied that he lost his temper with MC and denied that his version was a, ‘silly explanation’, for what happened. The Defendant recalled that MC said, ‘fuck you’, some few minutes after the incident but not 10 minutes after.
The Defendant was of the view that MC stayed home that night but could not be certain. The Defendant denied chasing MC that night. The Defendant agreed that MC liked to, ‘press his buttons’, and had moved his wine bottle before on a few occasions.
The Defendant agreed that he has some strength in his left arm being left arm dominant.
Submissions
Prosecution
The Prosecutor submitted that having considered the evidence of MC, particularly the Evidence in Chief interview (EIC), as well as his evidence before the Court, I would be satisfied that he was responsive to the questions, never argued with Defence Counsel and made concessions in relation to his conduct. Also, that he admitted to using force and admitting lashing out at his father.
The Prosecutor described MC’s evidence as, ‘telling it like it is’; he did not exaggerate and was clear about what happened. During his evidence he was asked to recall what happened and he was consistent in his recall. The Prosecutor pointed to the story he had told his teacher was similar to his evidence the whole way through. The Prosecutor pointed out that his evidence about the phone call was consistent with Mrs Hill’s evidence. [I note Mrs Hill gave evidence that she did not have a conversation with MC in relation to this incident. My comment].
The Prosecutor submitted that the incident was not put to TC because on MC’s evidence she was not there. The Prosecutor further submitted that his evidence could not be faulted, and I could rely on his evidence.
It was submitted in respect to the Defendant that there was no evidence that he exercised lawful chastisement because even on his evidence the reason to use the book in the way he did was to stop MC getting up and that does not lend itself to a lawful chastisement defence. That was because the Defendant had no reasonable grounds for using the book in that way as he was unaware of MC’s behaviour prior to entering the room. That behaviour consisted of arguments, there was no physical activity between them at all.
Further, the Prosecutor submitted that even on the Defendant’s own version, MC had not done or said anything to his father when he came into the room. There had been no altercation between the two at all. It was only when the Defendant was near MC and MC made a movement that he acted in the way he did and prior to that time there was ample opportunity for confrontation which did not occur and therefore the need to protect himself was not necessary.
The Prosecutor further submitted that in relation to the reasonableness of his belief, his actions were not proportionate to the behaviour, there were other options such as leaving, and he did not ask him to sit down, he just used force. That goes to proportionality.
The Prosecutor submitted that even having regard to the history between them his actions were not based on reasonable grounds. In relation to the first limb of the defence I should reject that because it was not reasonable in all of the circumstances because there was no legitimate reason to have the fear (that he would react physically) so does not make sense as to his actions, even on the defendant’s version of the event.
The Prosecutor submitted that according to MC his father was agitated with him and hit him out of spite.
Defence Counsel
Defence Counsel submitted that both parents rejected that MC left on the evening of the book incident after it was suggested in MC’s evidence he left the house. The conversation he said he had with his mother was denied by her. Mr and Mrs Hills evidence was not definitive as to proving the conversation or whether he stayed at Mr Hill’s house on 3 December.
The first complaint was made at school. Defence Counsel submitted that I should carefully consider the evidence of the teacher and the EIC in regard to this event. Defence Counsel pointed out that TC was never asked about this incident and on the Defendant’s evidence she was there at the time it happened.
Defence Counsel referred to Cattanach v Harrison [2016] ACTSC 60 per Walmsley AJ where his honour referred to paragraph 19 in relation to lawful justifications of the application of force which included consent, such as, patients consent to surgery, touching in the ordinary course of social activity, lawful arrest and lawfully correcting a child. His Honour referred to Collins v Wilcock [1984] 1WLR 1172 at 1177 where Robert Goff LJ and Mann J said:
The fundamental principle, plain and incontestable, is that every person’s body is inviolate… The effect is that everybody is protected not only against physical injury but against any form of physical molestation.
But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subject to reasonable punishment; people may be subject to lawful exercise of the power of arrest; and lawful excuse may be used in self-defence for the prevention of crime” … In each case, the test must be whether the physical contact… has, in the circumstances, gone beyond… generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case
Defence Counsel submitted that the conduct described by the Defendant was lawful chastisement of MC by restraining him from getting up by use of the book. This is to be viewed in the context that the siblings were arguing loudly and given the animosity between MC and his father it was reasonable to behave in the way he said he did. The conduct performed was as a result of the perception that things would escalate. The conduct was pre-emptive given MC’s difficult behaviour of late.
Defence Counsel submitted that the conduct was proportionate and gave an example of disproportionate behaviour as flogging a child with a belt because they left the lid off the toothpaste.
Defence Counsel submitted that the Defendant could have done something else but given he had the book in his hand and was aware of MC’s previous behaviour which was difficult to manage and his self-preservation, the conduct was reasonable and proportionate in the circumstances.
Given the Defendant was aware of MC’s past behaviour he was concerned for his welfare and that of his daughter. The behaviour was preventative because things were getting out of control.
Defence Counsel submitted that there is an inconsistency between MC’s version and the Defendants. Given this incident was in the context of what had been happening in the family with MC’s behaviour, parents have a responsibility to correct their children and to protect them.
Decision
The Defendant chose to give evidence. I remind myself that I must treat his evidence as I would any other witness. I can accept all or some of his evidence and I can reject some or all of his evidence. I also remind myself that it is for the Prosecution to prove each element of the offence beyond a reasonable doubt. The Defendant does not need to prove anything. The onus always remains on the Prosecution.
Having reminded myself of those factors I turn to the evidence of the Defendant. The Defendant gave evidence before me in relation to this charge. The Defendant’s version which I have summarised above is inconsistent with MC’s evidence in one particular way. MC said his father raised the book he had in his hand above his head and brought it down hard on MC’s head. The Defendant said that he placed the book on top of MC’s head to stop him from rising out of the chair. The Defendant did so because he was concerned for his safety and that of his daughter TC. Whatever the version that is accepted, it is arguable that the behaviour constitutes an assault, which is the unlawful application of force without consent.
It is clear in my view that on either version an assault took place. The question has been raised by the evidence given. That question is whether an exception to the principle cited above that every person’s body is inviolate has been founded? Clearly the defence of reasonable chastisement has been raised. I am satisfied that it has. It is thereafter for the Prosecution to negative the defence.
There are two issues I must consider before I embark on a consideration of the test of self-defence and whether the conduct was lawful because it was lawful chastisement. The first is to reconcile the two versions of events. Having considered the evidence of MC, if I were to prefer his evidence over his father’s, clearly self-defence would be negatived as on his version there would be no reasonableness, or proportionality in his action on the Zecevic and Viro test.
I turn to those two cases. In Zecevic v DPP (1987) 162 CLR 645, in summary the Court held, the question to be asked is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. In Viro v The Queen (1978) 141 CLR 88 Deane J said:
the element of reasonableness arises at three different stages as the essential component of distinct requirements or tests. The first stage is in the requirement that the perception of the accused that there existed an occasion of self-defence must have been reasonable in the sense “not [of] what a reasonable man would have believed but what the accused himself might reasonably believe in all the circumstances in which he found himself. If the accused’s perception of an occasion of self-defence was unreasonable in the context of his actual circumstance the effect of the formulation is that the defence fails completely.
The second and third stages mentioned by Deane J at which ‘reasonableness’ is relevant relate to the issue of proportionate force. An honest but unreasonable perception that self-defence was needed is insufficient to establish self-defence. The belief must be objectively reasonable. In R v Hendy [2008] VSCA 231 the Court explained the second limb of the test as:
The question whether the belief was (proved not to have been) based on reasonable grounds is to be determined not by what a reasonable person would have believed but what the accused person might reasonably have believed in all the circumstances in which he found himself.
Having considered the law in respect to self-defence and exceptions to what would otherwise be an unlawful assault I must make findings as to whether there was an assault, whether it was unlawful or in self-defence.
I must reconcile the two versions. Having warned myself that it is for the Prosecution to prove each element of the offence beyond a reasonable doubt, I turn to the evidence.
There is a competing version of events between the Defendant and MC. As I have already indicated to determine this issue I must consider the evidence of each person. If I am satisfied that there may be an explanation consistent with the Defendant’s innocence, or I am unsure as to where the truth lies, then in those circumstances I must find the offence not proved beyond a reasonable doubt.
In order for me to be satisfied beyond a reasonable doubt I would need to reject the Defendant’s evidence as to how the incident occurred and what actually happened. Having considered the evidence before me and the circumstances of the offending I cannot reject the evidence of the Defendant. There is no good reason to do so.
The Defendant by giving evidence placed himself in the position of being cross-examined. Nothing in either his evidence in chief or cross-examination led me to believe that he was untruthful. The scenario he painted was unusual but not unreasonable. Particularly given MC’s escalating violence toward his sister and particularly toward his father.
Having been unable to reject the Defendant’s version of events, I now turn to consider the behaviour in the context of an exception to an unlawful application of force. As I have already considered the authorities in respect to lawful chastisement, and after having considered the evidence before me I am satisfied that the actions of the Defendant could be considered to be lawful chastisement.
The reasons I have come to that conclusion are; the escalating behaviour of MC towards his father, towards his sister and his behaviour in general. That was clearly demonstrated in the evidence I heard.
In my view it was reasonable in the circumstances as the Defendant found himself to be in, to take some action to prevent further escalation of MC’s behaviour. The action was not disproportionate in all of the circumstances.
I find that the defendant administered lawful chastisement to MC on 3 December 2016. As such, I find the offence charge 12825 of 2016 not proven.
I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Decision of Her Honour Special Magistrate Hunter OAM.
Associate: Monique Marie Munro
Date: 17 April 2020
0
5
0