W, DL v Police - [2014] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
W, DL v POLICE
[2014] SASC 102
Judgment of The Honourable Justice Bampton
4 August 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Appellant appeals against a Magistrate’s finding that he is guilty of aggravated assault – circumstance of aggravation is that the complainant was his 13 year old son – whether Magistrate properly considered the defence of lawful correction of a child – whether Magistrate correctly applied the provisions of s 20(2) of the Criminal Law Consolidation Act 1935 (SA).
Held: it was open to the Magistrate on the evidence to find that the prosecution had established beyond reasonable doubt that the appellant’s actions were not in all of the circumstances acts of lawful correction – appeal against finding of guilt dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
Lumb v Police [2008] SASC 198, considered.

W, DL v POLICE
[2014] SASC 102
Magistrates Appeal: Criminal
BAMPTON J.
Introduction

Mr W appeals against being found guilty, following a trial in the Magistrates Court, of aggravated assault. The circumstance of aggravation is that his 13 year old son, D, was the complainant.
Mr W submits that the Magistrate failed to apply the common law defence of lawful correction of a child to a proper analysis of the facts and that his actions were moderate and reasonable and within generally accepted behaviour.
Mr W submits that the Magistrate failed to correctly apply the provisions of section 20(2) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) to the facts, resulting in an incident of lawful correction of a child being classified as an unlawful assault.
Having undertaken a review of the evidence and having due regard to the advantages the Magistrate had in observing the witnesses, the issues for my determination are:
·whether the common law defence of lawful correction of a child is available to Mr W; and
·whether his conduct could not amount to an assault because it fell within s 20(2)(a) of the CLCA in that it was “conduct within limits of what would be generally accepted in the community as normal incidents of social interaction or community life”.
Background
Mr W and his estranged wife, Ms W, are the parents of two sons, the complainant D and C. In April 2013, Mr W and Ms W had shared custody of their sons.
On 25 April 2013, Ms W was to have dropped the boys to Mr W’s home. However, as she was having difficulty with D, who was refusing to tidy his room, Ms W rang Mr W and told him that she would drop the boys over once D had cleaned his room. As C was upset that he was missing out on time with his father, Ms W sent a text message to Mr W asking…

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 W, DL v Police

Details

AGLC: W, DL v Police [2014] SASC 102
Case: [2014] SASC 102
Decision Date: 4 August 2014

CaseChat Overview and Summary

The case of W, DL v Police involves an appeal by the appellant against a Magistrate’s decision that he was guilty of aggravated assault. The offence arose from an incident where the appellant, Mr W, physically interacted with his 13-year-old son, D, in a manner that the Magistrate deemed to be an aggravated assault, due to the complainant being a child. The legal issues before the court were whether the common law defence of lawful correction of a child was available to Mr W and if his conduct could be considered an assault under the specific circumstances outlined in section 20(2) of the Criminal Law Consolidation Act 1935 (SA). The court had to determine if the Magistrate properly considered the defence of lawful correction and whether the statutory provisions were correctly applied.

The court reviewed the evidence and observed that it was open to the Magistrate to conclude, based on the evidence, that Mr W's actions were not within the bounds of lawful correction. The court emphasised the Magistrate's role in observing the witnesses and assessing their credibility, noting the acrimonious relationship between Mr W and the boy's mother, Ms W, and their mutual disdain for each other. Despite this, the court upheld the Magistrate's findings, considering the evidence of the altercation between Mr W and D and the Magistrate's conclusion that Mr W's actions went beyond what would be generally accepted as lawful correction. The court dismissed the appeal, affirming the Magistrate's decision that the prosecution had proved the offence beyond reasonable doubt.

The final orders of the court were to dismiss the appellant's appeal against the finding of guilt. The court's decision underscores the importance of the context and the nature of the interaction between the parent and child when determining whether conduct constitutes an assault or falls within the defence of lawful correction. The court found that the evidence supported the conclusion that the appellant's actions were excessive and not justified under the circumstances, thereby affirming the Magistrate's judgment.

Orders

Orders of the court

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Background

Background to the litigation

Having undertaken a review of the evidence and having due regard to the advantages the Magistrate had in observing the witnesses, the issues for my determination are: ·whether the common law defence of lawful correction of a child is available to Mr W; and ·whether his conduct could not amount to an assault because it fell within s 20(2)(a) of the CLCA in that it was “conduct within limits of what would be generally accepted in the community as normal incidents of social interaction or community life”.Background Mr W and his estranged wife, Ms W, are the parents of two sons, the complainant D and C. In April 2013, Mr W and Ms W had shared custody of their sons. On 25 April 2013, Ms W was to have dropped the boys to Mr W’s home. However, as she was having difficulty with D, who was refusing to tidy his room, Ms W rang Mr W and told him that she would drop the boys over once D had cleaned his room. As C was upset that he was missing out on time with his father, Ms W sent a text message to Mr W asking him to come and pick up C. Mr W drove to Ms W’s home to pick up C and on his arrival went into the house. C ran out of the house and got into his father’s car. Ms W then said to D that she was sure his father would wait for him if he picked up five more pieces of rubbish. Mr W went to look at D’s bedroom and told him he needed to clean the room and that he would wait for him. Mr W then went to his car and, after a period of time and on his evidence, was asked to return to the house by Ms W to help her get D to clean the room.[1] [1] TT25. Ms W gave evidence that she asked Mr W to wait until D had cleaned his room but did not plead for his assistance. On both versions of events it was when Mr W went back into the house that the incident took place. As D continued to refuse to clean his room, an argument and a physical altercation then took place between Mr W and D. The Magistrate found Mr W guilty of aggravated assault based on findings that he had grabbed D by the ear and had hit him with a backhander to the shoulder. The Magistrate also found that Mr W had held his son against the wall between grabbing him by the ear and giving him the backhander, but was of the view that self-defence had not been disproved.The trial evidence The prosecution called Ms W as a witness. Mr W gave evidence in his own defence and called his current partner who gave character evidence to the effect she had not had any concerns about his parenting.[2] D did not give evidence.[2] TT46. The Magistrate in his reasons for judgment noted the acrimony between Mr W and Ms W; how they were unable to hide their disdain for one another and that both were prepared to paint the other badly. The Magistrate also noted that, in addition to their overt disdain for each other being patently obvious during their evidence, both made snide remarks or actions during the course of the proceedings. The Magistrate concluded that the evidence given by Mr W and Ms W must be seen in the light of his comments about them. He said he strongly suspected that Mr W reacted with more vigour during the incident than he admitted to and that whilst Ms W’s evidence was somewhat exaggerated it was closer to the truth.

Evidence

Evidence Before The Court

The Magistrate found Mr W guilty of aggravated assault based on findings that he had grabbed D by the ear and had hit him with a backhander to the shoulder. The Magistrate also found that Mr W had held his son against the wall between grabbing him by the ear and giving him the backhander, but was of the view that self-defence had not been disproved.The trial evidence The prosecution called Ms W as a witness. Mr W gave evidence in his own defence and called his current partner who gave character evidence to the effect she had not had any concerns about his parenting.[2] D did not give evidence.[2] TT46. The Magistrate in his reasons for judgment noted the acrimony between Mr W and Ms W; how they were unable to hide their disdain for one another and that both were prepared to paint the other badly. The Magistrate also noted that, in addition to their overt disdain for each other being patently obvious during their evidence, both made snide remarks or actions during the course of the proceedings. The Magistrate concluded that the evidence given by Mr W and Ms W must be seen in the light of his comments about them. He said he strongly suspected that Mr W reacted with more vigour during the incident than he admitted to and that whilst Ms W’s evidence was somewhat exaggerated it was closer to the truth. This was clearly a case of oath against oath. Ms W gave evidence about Federal Magistrate’s Court orders made on 3 August 2012 pertaining to custody and care of D and C. One of the orders restrained both Ms W and Mr W from physically disciplining their children.[3] The Magistrate said the incident should be viewed against the background of this order but then went on to say that the order was not relevant. I have not taken the fact of the order into account in considering the appeal.[3] TT18. Ms W’s evidence was that D had behavioural difficulties and suffered from high levels of anxiety. Ms W agreed in cross-examination that D had threatened someone with a knife in the past.[4] [4] TT19. According to Ms W the grabbing of D’s ear occurred at the point when Mr W came back inside the house and was told by his son, “I don’t care. I’m not cleaning my room”. Ms W said that Mr W grabbed D by the ear and dragged him into the bedroom, telling him to, “just clean up the room”.[5] Ms W said that D got very upset and was telling his father not to touch him. She said that D kept saying, “Stop feeling me. Get off me” and that Mr W just continued to pull him by the ear.[5] TT10. Ms W said that D started calling Mr W a “raper” and said “you’re raping me” and that is when Mr W pushed D up against the wall by “his shirt and chest”.[6] She said this continued for a while and Mr W asked “what did you say?” and D said “you’re a raper. Get off me, you’re raping me. Get off”. She said Mr W then started chest pumping D.[6] TT12. Mr W’s evidence about this was:[7]So I come back in, asked him a couple more times to clean it. He was saying ‘No. Not going to do it’. So that’s when I grabbed him by the ear, another one on his shoulder and I sort of was going to try and take him to his room a bit. Yeah, so no, [D] was pretty defiant he wasn’t going to do it because he was already in a bit of a foul mood when I got there. So I let him go. Took a couple of steps back and that’s when I seen [D] change and he was going to have a go so we sort of went together, like, at each other both at the same time, and I grabbed him by the shirt, took him – put him against the wall.[7] TT25.

Decision

Reasons for decision

BAMPTON J

Finally, I note the Magistrate stated that one of the reasons he imposed the sentence he did was because Mr W hoped to re-establish a relationship with his sons whom, at the time of trial, he had not seen since the incident. My reasons and those of the Magistrate should not be viewed any higher than the offending being at the lowest end of the scale for this type of offence. Conclusion It was open to the Magistrate on the evidence to find that the prosecution had established beyond reasonable doubt that Mr W’s actions were not, in all the circumstances, acts of lawful correction. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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