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 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.
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.
It was after this that Mr W said that he let D go and D went to the ground and started calling him a ‘feeler’ and a ‘raper’. Mr W said that he just turned around and told D not to call him that and backhanded him on the shoulder.[8]
[8] TT25.
Mr W said he then moved away, spoke to D and Ms W, and left with C.
Mr W said that he didn’t grab D by the shoulder, “I just put my hand, placed it on his shoulder”. He agreed he might have given D’s ear a little squeeze, “right at the end, but not real hard”.[9] Mr W agreed he probably called D a “little prick” during the incident.
[9] TT31.
Ms W’s version of events includes Mr W chest pumping D in such a way that his fists came close to D’s throat, grabbing D by the neck and having him up against the wall by his neck with his feet off the ground. Ms W said he then threw D across the wall to the ground.
The Magistrate’s findings
The Magistrate made no findings of guilt based on Ms W’s allegations detailed in the preceding paragraph stating:
In the absence of any corroboration of much of what [Ms W] said, for example, evidence from a medico who examined [D] after the incident, or the nurse who apparently came to the house soon after the incident, of marks on the neck of [D] or a red swelling to his eye, it is difficult to find beyond reasonable doubt, and I cannot, that, firstly [Mr W] lifted [D] off the floor; secondly, that he grabbed him around the neck in the choking action that [Ms W] demonstrated; thirdly, that he chest pumped him in such a way that his fists came close to [D]’s throat; or, fourthly that he threw him to the floor, even though I suspect that much of that happened.
The Magistrate found that at the time Mr W grabbed D and held him against the wall that it was reasonably possible that he believed that D might react in a violent way and that his actions were proportionate to the threat. It was found self-defence was not disproved.
The Magistrate found Mr W took hold of D’s ear and squeezed it and that he gave D a backhander to the shoulder.
Lawful correction or chastisement
The Magistrate noted the evidence of Mr W and Ms W that D was being disrespectful and disobedient at the time the incident took place and that the defence of lawful correction was raised on the evidence.
Once lawful correction or chastisement was raised on the evidence it was for the prosecution to prove beyond reasonable doubt that Mr W was not acting in lawful correction.
Mr W submits that the defence of lawful chastisement was not disproved. Counsel for Mr W referred to the decision of Lumb v Police where David J said:[10]
[10] [2008] SASC 198 At [40].
There is very little recent authority regarding the lawful correction or chastisement of a child operating as a defence to a charge of assault. The principles governing the defence were set out in the case of R v Terry,[11] where Sholl J stated:[12]
[11] [1995] VLR 114.
[12] Ibid 116.
A parent has a lawful right to inflict reasonable and moderate corporal punishment on his or her child for the purpose of correcting the child in wrong behaviour, but there are exceedingly strict limits to that right. In the first place, the punishment must be moderate and reasonable. In the second place, it must have a proper relation to the age, physique and mentality of the child, and in the third place, it must be carried out with a reasonable means or instrument…So also a person duly authorized by a parent may act in his or her place…
Those principles were confirmed by this Court in R v Kinloch,[13] where Lander J said:[14]
The common law permits a parent to chastise his or her child. A parent may chastise his or her child “in a reasonable manner; for this is for the benefit of his education” (Blackstone Commentaries on the Laws of England, 1825 reprint of the 1783 Ed. at 452‑453). The circumstances in which that chastisement might take place were said to arise “for the purpose of correcting what is evil in the child” (R v Hopley (1860) 2 F & F 202; 175 ER 1024); and for “wrong behaviour” (R v Terry (1955) VLR 114).
…
Moreover, the law recognizes that if the circumstances for correction arise, the punishment must be moderate and reasonable. It cannot be administered “for the gratification of passion or rage” (R v Hopley (supra)).
If the punishment is immoderate or excessive, or if it is administered for reasons unconnected with the purposes mentioned above, then the punishment is unlawful.
…
In R v Terry (supra), Sholl J, in charging a jury, said that the punishment must be “carried out with a reasonable means or instrument”.
Lander J then went on to consider the facts in Kinloch and concluded that regardless of whether the child’s aunt was in fact acting in loco parentis, the defence would not have had any application. The nine year old child, who had had difficulty with reading, had not misbehaved so as to warrant the injury inflicted, the severity of the injury inflicted, namely prolonged hitting, nor the use of the instrument, namely a horse whip, with which the injury was inflicted. The chastisement simply could not be said to have been moderate or reasonable.
[13] (1996) 187 LSJS 124.
[14] Ibid 130.
It is clear that any punishment of a child must be moderate and reasonable in the circumstances.
Mr W submits that the prosecution had to exclude beyond reasonable doubt that the proven facts fell within what would generally be accepted as normal incidents of social interaction and community life. He contends that the phrase “generally be accepted” mandates a flexible assessment of his conduct. In mandating such, he argues that Parliament and the community do not expect perfection in parenting and in parental responses to poor behaviour from their children.
Mr W argued that against the background of D’s behaviour on 25 April 2013 and the fact he was 13 years old, not an infant, toddler or primary school child, his conduct was not so immoderate or unreasonable to be outside generally accepted behaviour beyond reasonable doubt. That is, that D’s behaviour was “wrong” and the method of correction in tugging his ear was fleeting and of minimal force, involved no instrument and caused no injury. Further, the backhander in response to D’s offensive language was also fleeting and caused no injury. He contended his actions were consistent with an imperfect yet lawful parental response to poor teenage behaviour.
The Magistrate did not consider the means used by Mr W to be moderate and reasonable in all of the circumstances:
To take hold of and squeeze a child’s ear because that child will not clean his room is neither moderate, nor reasonable chastisement. Further, to turn back when leaving, and give the child a backhander to the shoulder because he called the defendant a ‘feeler’ and a ‘raper’ seems more an act of passion than chastisement. In any event, it is not reasonable, and I so find.
The Magistrate made reference to D being “a very difficult child, and can be extremely frustrating in one’s dealings with him”. The Magistrate made clear that this incident was at the lowest end of the scale for offences of its type. The sentence he imposed and the remarks on penalty further reflect that this was a technical assault at the lower end of seriousness:
To some extent it is objective and to some extent you might be unlucky. Another Magistrate might not have found that what you did stepped over the line. I do. However, not by much, and it is for that reason that I do not think your character should be marked with a conviction.
His Honour said it was because of his characterisation of the incident and having regard to Mr W’s previous good character, the evidence given by his current partner about his demeanour and his hope to reconcile issues with his sons that he did not record a conviction.
Analysis
The “conduct” referred to in s 20(2)(a) of the CLCA being normal incidents of social interaction or community life does not extend to the disciplining of a child or lawful correction of a child. Rather the defence of lawful correction would be a defence contemplated by s 20(2)(b) which provides that “conduct that is justified or excused by law cannot amount to an assault”.
Having considered all the evidence there can be no doubt D is a difficult child who has behavioural difficulties. His father told the Magistrate that D had previously acted in a violent and aggressive way. His mother agreed in evidence that he had on a particular occasion threatened someone with a knife. At the time of the trial he did not go to school. He had found transitioning from primary school to senior school very difficult.
D did not like being touched. His mother suggested that D has autism although there was no independent psychological evidence to support this. I note that during his interview with the police Mr W referred to D having being prescribed at one stage Ritalin, a drug commonly prescribed for Attention Deficit Disorder.
Both parents said at the time of the incident D was being disrespectful and disobedient.
It is abundantly clear that D was testing the limits of his parents’ patience on 25 April 2013. Disciplining a child is challenging at the best of times, particularly so when a child is being more recalcitrant than usual and even more so if the child has behavioural or developmental issues.
D’s behaviour did warrant correction, he was a child on the cusp of his teens who was refusing to tidy his room. I accept Mr W’s evidence about the force with which he grabbed D’s ear and applied the backhander. However, having carefully considered the submissions and having reviewed the evidence, Mr W’s attempt to discipline D was not moderate and reasonable.
As fleeting as the ear incident may have been it is apparent from Mr W’s evidence that he was “sort of trying to take him to his room a bit”.[15] He was applying some force to D’s head and shoulder to move D toward his room. Application of force to a child’s head is not reasonable. It is also apparent that the backhander was given after Mr W had stepped away from D and when D had called him a ‘feeler’ and a ‘raper’. Mr W’s actions were, on my assessment, an angry response to D’s highly irritating behaviour.
[15] T25.
The fact that the interaction between Mr W and D called for Mr W to take defensive action to avoid being hit or kicked by his son makes it evident that the situation had escalated immediately after the grabbing of the ear. Further, it is against this background that the backhander occurred.
Mr W’s conduct was, as is implicit from the Magistrate’s reasons and remarks on penalty, technically an assault, “it is a very fine line, but in my view … the defence of lawful chastisement is not made out”.
It should also be noted that the Magistrates findings “do not involve any finding of any injury to D and to his credit Mr W on attempting to have D clean his room unsuccessfully then left before the situation escalated”.
I do not doubt that Mr W loves and cares for his son. I also have no doubt that the vexed acrimonious relationship he has with his estranged wife means his relationship with his son is very complex and at times extremely stressful. It is against this background that the incident occurred.
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.