Steven Bott v CP
[2014] NTMC 18
•11 August 2014
CITATION: Steven Bott v CP [2014] NTMC 018 PARTIES: Steven Bott v CP TITLE OF COURT: YOUTH JUSTICE COURT JURISDICTION: CRIMINAL FILE NO(s): 21405583 DELIVERED ON: 11 August 2014 DELIVERED AT: Darwin HEARING DATE(s): 7 July & 14 July 2014 JUDGMENT OF: Sue Oliver SM CATCHWORDS: CRIMINAL LAW – EVIDENCE – Record of interview – admissibility – Youth
Justice Act.
CRIMINAL LAW – Criminal Responsibility – Parent/Child
Relationship
REPRESENTATION:
Counsel:
Plaintiff: Mr Gillard Defendant: Ms MacCarron Judgment category classification: A Judgment ID number: 018 Number of paragraphs: 12 IN THE YOUTH JUSTICE COURT AT DARWIN IN THE NORTHERN TERRITORY OF AUSTRALIA
No. 21405583 BETWEEN:
Steven Bott
AND:
CP
REASONS FOR JUDGMENT
(Delivered 11 August 2014)
Ms SUE OLIVER SM:
CP is charged with an offence of unlawfully assaulting a person , namely
Cathryn Morris, who was working in the performance of her duties at the
time of the assault, contrary to section 188A(1)(2)(b) the Criminal Code.
She has pleaded not guilty to that charge.
The Interview
During the course of the hearing I ruled that the electronic record of
interview conducted by police was inadmissible and indicated that I would
provide reasons in due course.
The evidence of the police officer who conducted the interview and the
record of interview itself clearly illustrate a lack of understanding of the
requirements of the Youth Justice Act for the conduct of an interview with a
youth. The officer was not able to provide a full explanation of the role of a
support person for the purpose of the interview. It appears that the first time
the youth came to the police station she came with Ms Morris the allegedvictim. She was given “about a week to organise someone [else] to come
in”. CP was 14 years old. She next attended with a co-worker of Ms Morris
who sat in the interview. No explanation was given to the support person as
to her role. Although CP was told that the interview might go to court she
was not told what the consequence of that might be. The interview was
conducted in a perfunctory way with the officer essentially moving through
a pro forma and ticking the boxes off. It went for only 13 minutes. Most
concerning is that the interview commenced with the Officer telling CP that
she wanted to talk to her about the assault on Ms Morris . In essence CP was
being told that police had already decided that what had occurred was an
assault rather than her being interviewed to give her own account of what
occurred. Not only does that approach taint the way in which CP may have
responded to questioning, it taints the whole interview process because the
police have already pre-determined the issue. Although, as will become
apparent in this decision, an iPod was central to what had occurred, no
questions were asked about it because the officer had accepted what Ms
Morris said about where the iPod was.
There is a multiplicity of improper conduct in relation to the conduct of the
interview. Consequently I exercised my discretion to exclude it because in
my view it was not fairly conducted and therefore it could not be viewed as
reliable.
The iPod incident
Ms Morris gave evidence that at the relevant time in January this year she
was employed as a home carer with Safe Pathways. Although not fully
elicited in the evidence, the organisation is understood to provide home care
for children under protection orders pursuant to the Care and Protection of
Children Act who are under the parental responsibility of the CEO of the
Department of Children and Families. As Ms Morris said “So the houses were staffed 24/7. So any sort of –we were there to care for them. So the
general day to day needs that a parent would normally provide.”
Ms Morris’ evidence in chief was that on 23 January she thought she started
work about 04.00pm and that she was working with “Thanuja”. She said that
CP was yelling at them about different things “and any action we’d taken we
were just getting yelled at.” The last thing she remembered being yelled at
was about taking a cup from the lounge room to the kitchen to wash it and
that CP came over to the kitchen and was shouting at her how dare she touch
the cup and not to touch her cup.
She said as a consequence for this behaviour she saw CP’s iPod on the
couch and that was something that “we would use as a behavioural
consequence” so she walked over to the couch to take the iPod to put it in
the staff room. As she reached to get the iPod, CP came up from behind her,
“tackled” her to the ground and she threw the iPod and it slid away on the
tiles. CP then grabbed the iPod and ran into her room. She was not asked to
elaborate or explain what “tackled” meant. She went on to say that CP had
run at her from behind. She said that when she was tackled she went to the
ground and CP was on top of her. When CP went to her room, Ms Morris
called the police.
A co-worker, Ms Thanuja Bataduwage, also gave evidence. Ms Bataduwage
said that she had been working in the house that morning from about
9.00am. She had been on her own during the day. She was about to finish
her shift at 5.00pm and that is when Ms Morris came and she gave her a
handover. As she was about to leave, Ms Morris and CP “had an argument or
discussion and then it was just - ended in an argument and Cathryn [Ms
Morris] was not happy about what Catrina was saying and Catrina said I’m
not listening to you and then- yeah, it caused argument.”
She said that Ms Morris was upset and that she saw the iPod on the couch
and that she grabbed it. CP followed her and tried to take it from her. CP
“tackled Ms Morris” and then she grabbed the iPod and then she went to her
room. She said that CP was trying to get it off from “Cat” [Ms Morris] and
then this time Cat was screaming get off and then CP grabbed her iPod and
she went to the room”. Ms Bataduwage was 2-3 feet away at the time.
From her description overall it is apparent that the incident was over very
quickly. It was her interpretation of events that CP was not trying to assault
Ms Morris but was trying to get her iPod.
There are inconsistencies between the evidence of Ms Morris and Ms
Bataduwage. Ms Morris gave an impression of events in which CP had been
difficult and yelling about various things over an extended period of time .
However Ms Bataduwage’s evidence is that the incident with the iPod
occurred very soon after Ms Morris commenced her shift that day. Ms
Batuduwage did not say that there had been ongoing unruly behaviour
during the day by CP. She said that Ms Morris was angry.
Ms Morris’ evidence was that taking the iPod was something that could be
done by the carers as a consequence of bad behaviour. Ms Bataduwage said
that this was not a usual thing to take away belongings as a form of
punishment or consequence. Her evidence was that where if there was to be
a consequence that a young person would be advised of that in advance.
CP gave evidence. She said she was sitting on the couch charging her iPod
and playing on it when Ms Morris came up and took the cup of water that
was sitting there and that she had been drinking because she had a headache.
She said that Ms Morris said “whose cup of water is this” and she said “it’s
mine and please don’t touch it”. She said she ignored her, picked it up and
took it to the kitchen and tipped it out. She then got up to get another cup of
water. Ms Morris had gone back to the staffroom after she got up. She said
that she then came out of the staffroom and was walking towards the
kitchen. CP thought she was going to the kitchen to start dinner but then she
turned around and snatched the iPod.
Ms Morris did not in my view give a satisfactory account of why it was
necessary to remove the cup of water from CP. Her evidence overall was
coloured by an attempt to paint CP’s behaviour generally in a bad light
rather than contain her evidence to what happened on the day in question. I
think it was very clear that they did not have a good relationship.
What act constituted the alleged assault?
The evidence of what physical acts are therefore said to constitute the
alleged assault are somewhat mixed. Ms Morris describes being “tackled”
but as I have said there was no elaboration as to what this meant in terms of
actual physical contact. It is a somewhat pejorative term that does not
elucidate what physical act is said to constitute the assault. Significantly in
cross examination Ms Morris said:
“I felt her shoulder dig into me when we- we went to the ground as
I’m a lot smaller than Catrina is, so the – the sheer force of her
running behind me was what, you know, that that caused us to – to
fall over…and it was the area where her shoulder had dug into the
back that is tender.”
Later in cross examination there was the following exchange:
And so she reacted to you taking the iPod without telling her, didn’t
she?---Yes
And she came over and she grabbed it back from you? ---She
attempted to grab the iPod, but she was also intending to hurt me in
the process. She ran at me.
She ran at you or she ran at the iPod, to get the iPod?---Sorry?
Are you---?---She ran at me to get the iPod.
To get the iPod and there was a struggle over the iPod? ---Yes.
Ms Bataduwage also used the word “tackled” in her initial description but
expanded on this by describing what she saw as CP trying to get her iPod
back from Ms Morris.
18. CP said:
“I pushed her to [grab] the – I got up, pushed her to the [side or
aside] to grab my iPod back and but then it – she fell, she tripped
over the extension cord..” [1]
All witnesses seem to agree that CP was on top of Ms Morris for what
appears to have been a relatively short moment.
It is therefore unclear what act is said to constitute the assault. At its highest
it seems to me I could only be satisfied beyond a reasonable doubt that there
was some sort of bodily contact that resulted in them going to the ground
after a short struggle with the iPod.
Is CP criminally responsible for this conduct?
Criminal responsibility for this offence is in terms of section 31 of the
Criminal Code. Section 31 provides:
(1)
A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.
(2)
A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.
(3) This section does not apply to a crime defined by section 155.
On all of the evidence I am satisfied that there was no deliberate act of CP
to push Ms Morris to the ground but rather that occurred as a consequence
of their disparity in size when there was a struggle over the iPod.
Not every physical encounter between persons amounts to an assault within
the meaning of the Criminal Code. Indeed, the definition of assault in
section 187 excludes from that meaning applications of force that are used
for and are reasonably necessary for the common intercourse of life. It
seems to me important to view what occurred in the overall context of CP ’s
placement for care in an out of home placement arranged by her lawful
guardian, the CEO of the Department of Children and Families. As Ms
Morris said her job as a worker for Safe Pathways was to provide the
general day to day needs that a parent would provide. In placing a child in a
home with contracted carers the CEO of the Department of Children and
Families is delegating her or his responsibility at law for the physical
responsibility of daily care and control of that child to the persons providing
that care. That being the case in my view the carers exercise the duties and
rights in relation to the care of a child in the same way that a natural parent
would do.
It is not an uncommon occurrence in a home for there to be physical
interactions around possessions (either between parent and child or between
siblings) or around discipline of a child. In my view all the evidence in this
case points to CP acting to attempt to retrieve her iPod from Ms Morris and
not an attempt to apply bodily force to her. The fact that Ms Morris went to
the floor was consequential to the grabbing of the iPod, not an intentional
application of force to her on the part of CP. In my view a struggle between
a parent and child over a possession which inevitably would involve some
physical interaction would generally not be an act that met the definition for
an assault under the Criminal Code.
The question then is whether by reason of that physical interaction CP
should have foreseen Ms Morris falling to the ground with her on top of her
as a possible consequence of her conduct. Even if she does foresee that
consequence she will nevertheless be excused from criminal responsibility
if, in all the circumstances, including the chance of it occurring and its
nature, an ordinary person similarly circumstanced and having such
foresight would have proceeded with that conduct.
In my view there is no evidence upon which I could be satisfied beyond a
reasonable doubt that CP foresaw that Ms Morris would fall to the ground
with her on top as a result of the attempt to grab the iPod from her.
Even if she did, CP is 14 years old and like many young people her age has
a strong attachment to her iPod. On the evidence in her case the iPod had
special meaning for her as her mother had given it to her. The “ordinary
person similarly circumstanced” is to be measured against a similar young
teenager. In my view an ordinary 14 year old in similar circumstances would
be entirely focused on retrieving the iPod not on the struggle itself or its
consequences.
Finally I should say that calling the police over such an incident was an
overreaction on the part of Ms Morris. She was there to essentially parent
CP in the home provided for her. That was her job. In my view the normal
and responsible parental reaction to an incident of this nature would be to
allow time for emotions to cool and then to discuss with the child the
incident in an appropriate way and determine a proper consequence. I am not
suggesting that there cannot be instances where conduct in a care placement
amounts to an assault. It is a question of degree as to whether it is an
ordinary incident concomitant of a parent/child relationship or exceeds that.
This was not an incident that did so.
I am not satisfied beyond a reasonable doubt that CP is guilty of assault as
charged.
th
| Dated this 11 | day of August 2014. |
_________________________
Sue Oliver
YOUTH MAGISTRATE
[1]
Having reviewed the audio it is my view that what was said includes those words that I have
indicated in brackets.
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