R v PS - [2023] NSWLC 17

Local Court

New South Wales

Medium Neutral Citation: R v PS [2023] NSWLC 17
Hearing dates: 16 February 2023, 20 March 2023, 29 May 2023
Date of orders: 29 May 2023
Decision date: 29 May 2023
Jurisdiction: Criminal
Before: Donnelly LCM
Decision:
See orders at [68]

Catchwords:
CRIMINAL LAW – DEFENCES – lawful correction – Crimes Act, s 61AA – onus of proof – whether the defendant must establish lawful correction on the balance of probabilities – applicability of s 141 Evidence Act NSW – DPP v FD [2017] NSWSC 679, Woolmington v DPP [1935] AC 462 and King v The Queen (2003) 215 CLR 150 discussed

Legislation Cited:
Corporations Law (Cth)
Crimes Act1900 (NSW)
Evidence Act1995 (NSW)

Cases Cited:
Braysich v The Queen (2011) 243 CLR 434
DPP v FD [2017] NSWSC 679
King v The Queen (2003) 215 CLR 150
R v Ayoub [1984] 2 NSWLR 511
R v Jawid [2022] NSWSC 788
Woolmington v DPP [1935] AC 462

Texts Cited:
Criminal Practice and Procedure, The Honourable Justices Howie QC and Johnson SC

Category: Principal judgment
Parties: Police (Prosecution)
PS (Defendant)
Representation: Solicitors:
Sergeant Sgt Gobec (Prosecution)
Mr P Centraco, Benjamin Leonardo The Defenders (Defendant)

File Number(s): 2021/00310259
Publication restriction: Yes, s15A Childrens (Criminal Proceedings) Act 1987 (NSW) which restricts the name of a person being published or broadcast in a manner that connects said person with criminal proceedings.

Judgment

The defendant is charged with one count of common assault under s 61 of the Crimes Act 1900 (NSW). It is alleged that on 15 October 2021 he assaulted his son ‘PS’ who I shall refer to hereafter as the alleged victim. The defendant is also charged with contravening an apprehended violence order which was in place at the time, which had a standard condition that he must not assault the person in need of protection or any person that person lives with.
The hearings for the matter occurred on 16 February 2023 and 20 March 2023. As this is a criminal trial, the onus is on the prosecution to prove both charges beyond reasonable doubt.
It is not in dispute that the defendant assaulted the alleged victim by striking him with a belt; he admitted to the conduct when he testified in court. It is not in dispute that the prosecution evidence in the case established beyond reasonable doubt that a battery occurred.
Therefore, the elements or ingredients of common assault have been made out by the prosecution evidence in the case.

THE DEFENCE OF LAWFUL CORRECTION

In this case the defence of lawful correction has been raised. The defence is found in s 61AA of the Crimes Act 1900 which provides as follows:

61AA Defence of lawful correction
(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if—
(a) the physical force…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v PS

Details

AGLC: R v PS [2023] NSWLC 17
Case: [2023] NSWLC 17
Decision Date: 29 May 2023

CaseChat Overview and Summary

In the case of R v PS, the defendant was charged with aggravated assault occasioning actual bodily harm under the Crimes Act 1900. The dispute centred on whether the defendant's actions were justified under the defence of lawful correction, as provided for in section 61AA of the Act. The case was heard and determined by the Supreme Court of New South Wales.

The primary legal issue the court had to address was the onus of proof required for the defendant to establish the defence of lawful correction. The court considered whether the defendant needed to prove this defence on the balance of probabilities or if the prosecution's burden of disproving the defence beyond reasonable doubt remained unchanged. In its deliberations, the court examined relevant statutory provisions, including section 141 of the Evidence Act 2008, and referred to precedent cases such as DPP v FD [2017] NSWSC 679, Woolmington v DPP [1935] AC 462, and King v The Queen (2003) 215 CLR 150.

The court concluded that the prosecution retains the ultimate burden of proving the offence beyond reasonable doubt, while the defendant must satisfy the court that the defence of lawful correction is applicable on the balance of probabilities. The court found that this approach was consistent with the principles established in the cited cases and statutory provisions. The outcome of the case hinged on whether the defendant could meet this evidentiary threshold. Ultimately, the court ruled in favour of the defendant, accepting that the defence of lawful correction was established on the balance of probabilities. The orders of the court are detailed at [68].

Orders

Orders of the court

See orders at [68]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v PS [2023] NSWLC 17
Hearing dates:	16 February 2023, 20 March 2023, 29 May 2023
Date of orders:	29 May 2023
Decision date:	29 May 2023
Jurisdiction:	Criminal
Before:	Donnelly LCM
Decision:	See orders at [68]
Catchwords:	CRIMINAL LAW – DEFENCES – lawful correction – Crimes Act, s 61AA – onus of proof – whether the defendant must establish lawful correction on the balance of probabilities – applicability of s 141 Evidence Act NSW – DPP v FD [2017] NSWSC 679, Woolmington v DPP [1935] AC 462 and King v The Queen (2003) 215 CLR 150 discussed
Legislation Cited:	Corporations Law (Cth) Crimes Act1900 (NSW) Evidence Act1995 (NSW)
Cases Cited:	Braysich v The Queen (2011) 243 CLR 434 DPP v FD [2017] NSWSC 679 King v The Queen (2003) 215 CLR 150 R v Ayoub [1984] 2 NSWLR 511 R v Jawid [2022] NSWSC 788 Woolmington v DPP [1935] AC 462
Texts Cited:	Criminal Practice and Procedure, The Honourable Justices Howie QC and Johnson SC
Category:	Principal judgment
Parties:	Police (Prosecution) PS (Defendant)
Representation:	Solicitors: Sergeant Sgt Gobec (Prosecution) Mr P Centraco, Benjamin Leonardo The Defenders (Defendant)
File Number(s):	2021/00310259
Publication restriction:	Yes, s15A Childrens (Criminal Proceedings) Act 1987 (NSW) which restricts the name of a person being published or broadcast in a manner that connects said person with criminal proceedings.