Carruthers v Griffis [2000] NTSC 11

163 Right of appeal to Supreme Court

(1) A party to proceedings before the Court may appeal to the Supreme Court from a conviction, order or adjudication of the Court (including a conviction of a minor indictable offence but not including an order dismissing a complaint of an offence), on a ground which involves -

(a) sentence; or

(b) an error or mistake, on the part of the Justices whose decision is appealed against, on a matter or question of fact alone, or a matter or question of law alone, or a matter or question of both fact and law,

as hereinafter provided, in every case, unless some Special Act expressly declares that such a conviction, order, or adjudication shall be final or otherwise expressly prohibits an appeal against it.

Mr Griffis, who appeared in person, submitted that no appeal lay, as there is no appeal from an order dismissing a complaint of an offence, but it is plain that an order dismissing an application under the Domestic Violence Act is not "a complaint of an offence", but is an "order" within s163(1). Clearly Mr Lawrence is correct and an appeal does lie.

[3]

Mr Griffis next submitted, in effect, that the appeal was brought in bad faith and was an abuse of the process of this Court - although he did not use those precise words. He claimed that there were proceedings relating to parenting orders pending between the parties in the Family Court of Australia; that these proceedings were due to come on for hearing next month; that the appellant's purpose in pursuing this appeal was to gain a forensic advantage in those proceedings (and not because the appellant wanted to vindicate some right under the Domestic Violence Act); that the appellant and the respondent had not been in contact with each other, apart from on occasions at court, since 24 September 1999, and there was already in force an order of the Family Court prohibiting either party coming within 15 metres of each other at times when their children are being collected for, or returned from, an access visit.

[4]

Every superior court has inherent power to stay or dismiss any proceeding, whether civil or criminal, which is an abuse of its processes. The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed: Sea Culture International Pty Ltd v Scoles and Others [1991] FCA 523; (1991) 32 FCR 275 at 279. A proceeding amounts to an abuse of process when the plaintiff, or applicant, uses, or threatens to use, the process of the Court to effect an object not within the scope of the process without intending to bring the proceedings to a successful conclusion so as to take advantage of some entitlement or benefit which the law gives the litigant in that event; or for a purpose other than that for which the proceeding is properly designed; or to secure some collateral advantage beyond that which the law offers: see Williams and Others v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 526-7 per Mason CJ, Dawson, Toohey and McHugh JJ. It is not necessary that the improper purpose is the sole purpose of the moving party - it is sufficient if it is the dominant purpose: see Williams and Others v Spautz, supra, at 529.

[5]

It is not difficult to see how an appeal from a decision dismissing an application could be an abuse of process if the purpose of bringing the proceedings in the first place was improper, but if the application was properly brought, it is difficult - but not impossible - to imagine how an appeal could be brought for an improper purpose. I note also that in Williams and Others v Spautz, supra, at 522, the Court rejected the notion that the power to prevent abuse extended to those cases where the moving party had, or was presumed to have, a prima facie case.

[6]

In the present case, there is a paucity of evidence to support the respondent's assertions. There is no affidavit material offered by the respondent to support his contentions, although the respondent can, of course, rely upon any other material properly before the Court, including the transcript of evidence before the learned Magistrate, and any of the exhibits tendered in the Court below to the extent that this material provides admissible evidence. According to the transcript, the appellant gave evidence and was cross-examined by the respondent through the learned Magistrate. No questions were put to the appellant or to any of her witnesses designed to suggest that she had brought the proceedings for any improper purpose. However, the respondent successfully challenged a number of grounds in the amended application on the basis that these grounds had been the subject of earlier applications to the Court which had been resolved in the respondent's favour. Undoubtedly it was an abuse to attempt to relitigate in fresh proceedings that which had already been resolved, but the attempt failed and the application was then fought on the merits of the remaining allegations which had so far not been the subject of any application to the Court. The respondent claimed that the appellant had unsuccessfully sought an order against him on several previous occasions in recent times, and this does not appear to have been disputed. The other background facts relating to the pending Family Court proceedings referred to in paragraph [3] above and the existing orders of that Court, do not appear to be in dispute.

[7]

During his evidence in chief, the respondent, in answer to a question from the learned Magistrate, said:

...she's doing this as a ploy to get Brownie points for the Family Law Courts. That's all it boils down to...I have done nothing that she is wanting me restrained for...She has tried this on several occasions earlier and she continues to fail because there is no evidence that I am even partly violent towards her.

No cross-examination was directed to this part of the respondent's evidence. No application was made by either party to have the appellant recalled to be cross-examined about her motives for bringing the application, nor did his Worship suggest this course to either of the parties.

[8]

During submissions to the learned Magistrate, the respondent put it that the appellant's case was an abuse of the funding that is given to the Domestic Violence Legal Service because of the attempt to relitigate seven issues that had already been the subject of findings by the Court on previous occasions in order to enhance a very weak case before the Court, and that the application was:

...her way of making me out to be bad for the children, thus giving her reason for renewed orders at the Family Law Courts that will destroy the children's relationship with me and as it seems to be her objective in life. (sic)

[9]

On the other hand, the appellant was asked by her counsel, in evidence in chief, why she needed a restraining order. She said:

Over the last 5 years, since we have separated, Mr Griffis has been on many occasions loud, abusive, intimidating. Most of these occasions occur when there aren't witnesses around and in that effect (sic) it has been really difficult for me to obtain a restraining order. But the occasion that happened in August was witnessed and that's why I'm here again, to seek a restraining order to prevent Mr Griffis from contact with myself.

The appellant went on to explain that she did not believe the Family Court's order to be sufficient protection for her and that she did not believe that the respondent would adhere to it adequately. No cross-examination was directed to this evidence.

[10]

The learned Magistrate made no finding on whether or not the appellant's application was an abuse of process. His Worship dealt with the application on the merits and dismissed the application because he was not satisfied that the appellant had proved her case.

[11]

In the majority judgment of the Court in Williams and Others v Spautz, supra, at 529, their Honours said:

It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is "a heavy one", to use the words of Scarman L.J. in Goldsmith v Sperrings Ltd and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.

[12]

The evidence does not satisfy me that the appellant's application, or that the bringing of this appeal, is an abuse of process in the sense discussed above. The onus is on the respondent to prove that the appellant's purpose was and is improper. The failure to put this to the appellant during the course of the hearing and the appellant's evidence as to why she was seeking the restraining order, which was not the subject of cross-examination, makes it impossible to reach such a finding to the level of satisfaction needed. Moreover, the objective circumstances, which are not in dispute, are not sufficiently compelling to require such an inference to be drawn adversely to the appellant.

The Issues in the Court of Summary Jurisdiction

[13]

Before dealing with the grounds of appeal, it is necessary to turn to the issues in the Court below. The appellant's case, as it ultimately fell to be considered, rested upon three discreet incidents:

An allegation that on 30 November 1998 the respondent assaulted the appellant's partner, Lee Spain, at his place of work, during the course of which the respondent threatened to kill Mr Spain and the appellant and caused Mr Spain bodily harm.

An allegation that on 24 August 1999, the respondent assaulted the appellant at her home in Moulden after returning two of their children home late. The appellant alleged that the respondent pushed her causing her to injure her ankle and was "verbally abusive" to her during this incident.

An allegation that on 24 September 1999 at the "Family Law Court", Darwin, the respondent acted in an offensive and provocative manner towards the appellant and also threatened her.

[14]

The respondent admitted attending at Mr Spain's place of work; that he used threatening words to him, viz., "If he continued to fill my kid's head full of shit, I would drag him outside and beat the shit out of him"; that a Magistrate found it proved that he had assaulted Mr Spain by the words used; and that a Magistrate placed him on a twelve month good behaviour bond without recording a conviction and ordered him to pay costs of $710-00. He denied threatening to kill Mr Spain or the appellant, or causing Mr Spain bodily harm. The learned Magistrate found that he was not satisfied on the balance of probabilities that the respondent uttered a threat that the appellant's life was at risk. There are no other relevant findings.

[15]

The respondent denied assaulting the appellant at all on 24 August 1999, or that the appellant injured her ankle, or that he was "verbally abusive". The learned Magistrate found that the respondent pushed the appellant with his right hand at the side of the appellant's right shoulder causing the appellant to move backwards, but that the appellant had not proven that the push amounted to an assault because the appellant had not proved that the push was not justified because it was not done in self-defence; nor not done in an endeavour to discipline, manage or control a child (Criminal Code, ss27(b) and (p)). His Worship found there was no injury to the ankle and that the appellant's evidence to this effect was fabricated.

[16]

As to the incident at the "Family Law Court", the respondent's case was that he made certain remarks to the appellant's solicitor as he was leaving the building, but that those remarks did not constitute offensive or provocative behaviour. His Worship found that the respondent had acted in an offensive and provocative manner, but his Worship was not satisfied that his behaviour was likely to lead to a breach of the peace.

[17]

Mr Lawrence, counsel for the appellant, advised the Court that there was no appeal against the dismissal of the ground relating to the alleged circumstances surrounding the assault on Mr Spain on 30 November 1998. The grounds of appeal related only to the other two incidents.

[18]

The original Notice of Appeal specified the following grounds:

Ground 1. On the weight of the evidence the learned Magistrate should have found the application proved.

Ground 2. The learned Magistrate misdirected himself on the question of self-defence in relation to the allegation of an assault perpetrated by the defendant on the applicant on 24 August 1999.

Ground 3. The learned Magistrate misdirected himself on the question of section 27(p) of the Criminal Code Act (NT) 1997 in relation to the allegation of an assault perpetrated by the defendant on the applicant on 24 August 1999.

[19]

At the hearing, Mr Lawrence sought leave to amend the grounds of appeal to add two further grounds:

1. The Learned Magistrate erred by failing to give sufficient weight to the Defendant's failure to comply with the principal in Brown v Dunn (sic)

2. An aggregate of errors in the conduct of the trial led to the trial miscarrying.

The respondent, who was self-represented, did not object to these additional grounds. I sought particulars of ground 2 for the benefit of both the Court and the respondent: see para [34] infra.

[20]

The learned Magistrate rejected the appellant's evidence. He found that the appellant was not a witness of truth and that she was unreliable and not frank and that she "has the appearance of a drama queen who is prepared to blow things out of proportion". He elaborated on why he did not accept her evidence by reference to particular examples. He concluded by saying that her evidence "is not to be believed unless it is corroborated by another". I note also that, because of some of his findings, his Worship also must have rejected the respondent's evidence in a number of important respects, although he does not specifically say so and does not say why he did so.

[21]

Mr Lawrence submitted that the reasons his Worship gave for rejecting the appellant's evidence "don't add up" and that the learned Magistrate failed to take into account the fact that the appellant's evidence was corroborated by other witnesses called by the appellant.

[22]

Before dealing with this submission, it is worth noting that the proceedings were dealt with in the Court of Summary Jurisdiction which, as is well known, is a very busy Court. As the transcript shows, the hearing was interrupted from time to time because the learned Magistrate had other important business to attend to. No running transcript is available. The proceedings were not made any easier by the fact that the respondent appeared in person. The appellant was cross-examined through the Magistrate in accordance with the procedure set out in s20AD of the Act. Another witness was examined and cross-examined in the same fashion. At the conclusion of the hearing (at some time on the morning of 7 October), his Worship retired until 2 p.m. to consider his decision and his Worship delivered oral reasons for his decision apparently at that time. In circumstances such as these, this Court has said that some allowances have to be made when considering, on appeal, everything that has fallen from the Magistrate when delivering his reasons and that, for instance, just because some matters which ought to have been considered were not mentioned, does not necessarily mean that it would be proper to infer that they were not considered: see, for example, McKay v Hayward (Kearney J, unreported 15 February 1995). The principle appears to be that an appellate court will usually assume that the Magistrate has considered all matters which are necessarily implicit in any conclusions which he had reached: see Bartusevics v Fisher (1973) 8 SASR 601, per Bright, J. This principle is not confined to sentencing matters as Bartusevics v Fisher itself shows. Nevertheless, proper reasons need to be given.

[23]

Taking this into account, I am not satisfied that it has been demonstrated that his Worship incorrectly rejected the appellant's evidence, or that his Worship misdirected himself by failing properly to consider the extent to which her evidence was supported by other witnesses. There is no finding that his Worship accepted the whole of the evidence of any of the witnesses and in fact, I consider that looking at his Worship's reasons as a whole, it is plain that he accepted some of what the other witnesses had said and rejected other parts of their evidence. This is not surprising or unusual. I am not satisfied that it has been demonstrated that his Worship misunderstood the evidence, or that any of the reasons he gave for rejecting the appellant's evidence were without foundation. I would therefore reject ground 1.

[24]

I do not understand Mr Lawrence to have pressed ground 2. Mr Lawrence conceded that there was some evidence before the learned Magistrate that on 24 August 1999, the respondent had acted in self-defence, even though the respondent himself did not claim he was acting in self-defence, and no other witness gave an account consistent with self-defence. It is apparent that his Worship must have reached the conclusion that self-defence had been raised by way of inference from such of the circumstances that he found to have existed by accepting parts of the evidence of the respondent and the respondent's seven year old son James, and parts of the evidence of the appellant's witness, a fourteen year old girl Rebecca Koller, who lived next door to the appellant. The principal findings which suggest this must have been the case are these: His Worship said that he could not find with precision what had occurred on that day; all he could find "is little scraps of what occurred". His Worship said that he found that the appellant was aggrieved by the fact that the respondent had collected their two children for an access visit from school an hour early and returned them an hour late. The appellant did not make her grievances known to the respondent in a reasonable fashion, but that something happened in her dealings with the respondent to cause the appellant to resort to swearing. Something also occurred to make the respondent feel the need to make a point; and in making that point, the respondent felt the need to say goodbye to his children and that involved cuddling his children. His Worship then said:

At one point the child Adam was behind his mother. Mr Griffis went to cuddle the child; Ms Carruthers blocked him. He got around her and cuddled the child. Mr Griffis was hit on the back and cheek for his trouble by Ms Carruthers. In the course of getting around Ms Carruthers he pushed Ms Carruthers to the right shoulder; as a result of the push she moved backwards...I accept the evidence of Rebecca Koller as to the push to the right shoulder and the movement backwards...what occurred...is clouded with uncertainty. In relation to the fact that I have found that she was pushed to the right shoulder, she cannot rule out that the application of that force was not justified. I pause here to say that Mr Griffis should not have pushed. My finding is not a licence to any man to say that they can push a former spouse if that former spouse is blocking by the use of her body.

[25]

The inference from this passage is that the learned Magistrate was not satisfied that the push was not in order to ward off the appellant's attack upon the respondent. Mr Lawrence's complaint is that the evidence led by the respondent and his son to the effect that the appellant hit the respondent on the back and on the cheek at the time he was attempting to reach the child was never put to the appellant in cross-examination. Therefore, it was submitted, the Magistrate erred in finding that this occurred and hence, self-defence was not open. Mr Lawrence's real complaint is, therefore, that the learned Magistrate's decision violated the rule in Browne v Dunn (1893) 6 R 67: see additional ground No. 1.

[26]

I was not referred by counsel to any of the many authorities on this topic.

[27]

In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607, Hunt J, as he then was, said, at p623:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.

[28]

Although 'a rule of professional practice' (an expression used by Lord Herschell LC in Browne v Dunn, supra, at 70-71) it applies to unrepresented parties: see McInnis v The Queen (1979) 143 CLR 573 at 590; R v Schneidas (No 2) (1981) 4 A Crim R 101 at 110-111; Eastman v R (1997) 158 ALR 107 at 192, whether the matter is civil or criminal: see R v Birks (1990) 19 NSWLR 677 at 689-9 per Gleeson CJ.

[29]

The first question is whether the rule was, or was not, complied with. The rule itself recognises some exceptions: see Cross on Evidence (Australian Ed) J D Heydon, paras 17,445 and 17,450. This case does not fall within those exceptions and there is no doubt that the rule was broken as the learned Magistrate himself recognised. But this occurred in unusual circumstances. First, it is clear that the credit of the appellant and the witness Koller as a witness of truth was put in issue by the respondent. However, the respondent's case was not that he pushed the appellant in self-defence - but that he did not push her at all. Although not even that allegation was specifically put to the appellant or to the witness Koller, it must have been clear to the appellant that that was his case. The first indication that the respondent was contending that the appellant struck him first, arose in the respondent's evidence in chief. Similar evidence was given by the respondent's son who was questioned by the learned Magistrate, rather than by the respondent, in evidence in chief. No objection was then raised by counsel for the appellant and no application was made to recall the appellant or Miss Koller. Further, no cross-examination was directed to that specific allegation, although counsel for the appellant did suggest that his evidence in chief was untrue.

[30]

The learned Magistrate did not intervene. The authorities show that his Worship had a wide discretion as to the course he might have taken. However, he was not invited to reject the respondent's evidence as being inadmissible; c.f. R v Schneidas (No 2), supra, at pp110-111, but see R v Allen [1989] VicRp 64; [1989] VR 736 at 737-8 per McGarvie J. Whatever may be the position in criminal proceedings, in my opinion, evidence led in breach of the rule in civil proceedings is still admissible evidence, although its weight may be affected; but if the judge relied upon it, it does not follow that the appeal must be allowed: see Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840 at 847, per Newton J; Crosthwaite v Corporation of the City of Elizabeth; AGC (Insurances) Ltd (Third Party) [1989] SASC 1500; (1989) 51 SASR 105 at 111; c.f. Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 536-537, where Clarke JA decided that the trial judge could prevent the calling of such evidence, albeit that that was "an extreme step and a consequence which will not normally attend a breach of the rule in Browne" (at p 537). The question on appeal must always be whether there has been a miscarriage of justice of such a nature that a new trial should be ordered: see Payless Superbarn, supra, at 558; Mapley v Radial Industrial (1982) 61 FLR 189.

[31]

In my opinion, the trial in this case did miscarry. The reasons his Worship gave for rejecting the appellant's evidence did not depend upon accepting the appellant's evidence that the appellant struck him. Most of the reasons given for rejecting the appellant's evidence had nothing to do with that. His Worship did mention the evidence of Miss Koller that she had seen the appellant strike the respondent on one occasion as one of the reasons, but Miss Koller was the appellant's witness. His Worship also accepted the evidence of the child, James Griffis, that the appellant hit the respondent on the back and right cheek whilst the respondent was kneeling in an endeavour to say goodbye to the child Adam, but that was only one of several reasons his Worship relied upon and the child's evidence was not challenged in cross-examination and not objected to. There is no evidence that the appellant had other witnesses to call, but who were not called as no cross-examination was directed by the respondent to the appellant or her witness on this issue. No objection was taken at the time to the respondent's evidence, and no application was made to recall the appellant or Miss Koller by the appellant's counsel. Unlike the situation in Mapley v Radial Industries, supra, there is no evidence that the appellant or Miss Koller were not available to be recalled. The situation is therefore similar to that which arose in Karidis v General Motors - Holdens Pty Ltd (1971) SASR 422. In that case, the appellant had sought worker's compensation alleging that he was disabled from work as the result of an injury received in the course of his employment. The worker himself gave evidence and called two doctors in support of his case. The respondent employer had taken films of the workers activities to support the contention that the worker was a malingerer. The films were not shown to the worker or the worker's doctors in cross-examination; nor were they asked to comment upon them. The worker was asked in a general way what activities he could do and one of the worker's doctors, Dr Chick, was asked what effect it would have on his opinion if it could be shown that the worker could perform certain activities, but the activities mentioned failed in important respects to coincide with the activities shown in the film. The respondent called the investigator, Mrs Lock, and tendered the films and called its own medical expert whose opinion, based on the films, was that the worker was malingering. The worker's counsel called his second expert, Dr Cacas, after the respondent's case was closed. No attempt was made by either counsel to show Dr Cacas the films. The Magistrate rejected the worker's claims. The Full Court's reasons for rejecting the appeal because of the failure by the respondent's counsel to comply with the rule in Browne v Dunn, supra, were given by Bray CJ who said at pp425-6:

The principle invoked on behalf of the appellant is the well known one that if it is desired to impeach the evidence of a witness on any particular topic or his evidence generally, he should be cross-examined about that topic, or about any matter on which adverse evidence will be called, so as to give him a chance to make any explanation open to him, unless he has had ample notice of the matter beforehand, or unless perhaps, his story is patently incredible (Browne v. Dunn; Dayman v. Dimpson). The principle merely illustrates an obvious rule of justice and I do not desire to weaken it in any way, but it is necessary to look at the reason underlying it rather than the exact words in which it may from time to time have been expressed. It seems to me that under contemporary practice, when the calling of witnesses in rebuttal is very common, the occasions for the intervention of courts of appeal on this ground may be less frequent. The reason for the principle is obviously that the witness ought to have the opportunity to give what explanation he can of the matter in question and that he should not be disbelieved, nor should adverse inferences be drawn against him, because of other evidence relating to the topic on which he has been unable to comment.

In the present case no application was made to call the appellant or Dr. Chick in rebuttal after the films had been proved by Mrs. Lock. If such an application had been made and refused, or if for any reason it was impracticable for either witness to be called in rebuttal, the matter would stand differently. But there is no reason to suppose that such an application would not have been granted or that the witnesses were not available. Indeed, it is more advantageous, generally speaking, to the witness if he can give his explanation at a later stage, after he has heard the evidence against him and has had opportunities for due deliberation, than if the question is sprung upon him without warning during cross-examination. And Dr. Cacas gave evidence after the films had been produced and both the examiner and the cross-examiner could have asked him to look at them and comment on them if she or he had desired to do so.

I do not, of course, criticise either the decision not to attempt to call the appellant or Dr. Chick in rebuttal, or the decision by counsel on both sides not to show the films to Dr. Cacas. Advocacy involves a continual series of choices and the factors governing the exercise of any particular choice are not known to the court and it is not for the court to comment on it. But once it is made then, subject to obvious exceptions in appropriate cases, the election is final and the court of appeal cannot undo it.

[32]

However, what differentiates this case from Karidis is that there was never any suggestion that self-defence was in issue. The respondent did not submit, at any stage, that he was acting in self-defence at the time. The only reference to self-defence is at tr p78 when the respondent said in cross-examination:

I put it to you that you were verbally abusive towards her throughout this incident?

Only after I got called all the names in the sun, and that's called self-defence, as I was being verbally abused at the time.

This referred to abusive language used by the respondent at an earlier time on the same occasion. At no stage did the respondent claim that he pushed the appellant away in self-defence. Consequently, counsel for the appellant was entitled to assume that the issue of whether or not the appellant struck the respondent, and if so, whether this occurred before or after the respondent pushed the appellant, was not directed towards establishing self-defence. That issue was not raised in addresses. The first mention of it is in his Worship's reasons. In these circumstances, like the majority in Mapley v Radial Industries, supra, I do not consider that the appellant should be bound by her counsel's conduct for four reasons. First, self-defence was never put. Secondly, the possibility of self-defence arose by the unfair manner in which the evidence was led. Thirdly, the unsatisfactory nature of the evidence led to the case being determined, not by positive findings of relevant questions of fact, but by reference to the onus of proof on the issue of whether or not the respondent acted in self-defence. Lastly, the overall objectives of justice under the law would, in the present case, be best served by ordering a new trial: see the reasoning of Deane J in Mapley v Radical Industries, supra, at p200. I would therefore uphold the appeal on this ground.

[33]

The learned Magistrate held that the appellant had not proven that the respondent's conduct was not justified by ss27(p) of the Criminal Code Act (NT) 1997. That defence was also never raised and in my view, even if it were a proper basis for refusing relief, I consider that it is in the same category as the self-defence issue.

[34]

In any event, in my opinion, ss27(p) was not relevant to this case. That subsection provides:

In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or grievous harm:

[(a) to (n) not relevant]

(p) in the case of a parent or guardian of a child, or a person in the place of such parent or guardian, to discipline, manage or control such child.

[35]

Clearly the application of force with which ss27(p) is concerned, is force directed at the child in order to discipline, manage or control the child. It is not directed at force used upon another who may be preventing a parent from using such force on the child. In any event, there was no evidence that the respondent intended to discipline, manage or control his child. He wanted to hug the child in the process of saying "goodbye". That is not an assault or attempted assault on the child: see s187(e). I would therefore uphold the appeal on this ground.

[36]

Particulars of this ground have been provided by Mr Lawrence. Most of the matters complained of have already been dealt with. One matter of complaint is in relation to the incident at the "Family Law Court" in that the learned Magistrate did not find that the words complained of were directed at the appellant, although his Worship did find that the words were said in the appellant's presence. His Worship found that the behaviour of the respondent by using those words constituted behaviour of an offensive and provocative manner. It is difficult to see what the appellant complains of, given this finding, but I assume that the real complaint is his Worship's decision that the words were not likely to lead to a breach of the peace. In order for the appellant to have obtained a restraining order on this ground, the appellant needed to show not only that the respondent had behaved in a provocative and offensive manner towards the appellant, but also, that the behaviour "is such as is likely to lead to a breach of the peace" (see s4(1)(c)(ii) of the Domestic Violence Act) and also, that the respondent, unless restrained, was likely again to behave in the same or a similar manner (see s4(1)(c)(iii)). Even if the words spoken had been directed at the appellant, I do not consider that the learned Magistrate was wrong to conclude that the behaviour was not likely to lead to a breach of the peace. The learned Magistrate found that the words uttered were a parting shot as the respondent walked out of the Court building. Mr Lawrence complained about this finding, but the evidence is that the respondent left the building immediately afterwards. The appellant was inside the building at all times. There was nothing to suggest that a breach of the peace was likely at the time. I do not consider that I should uphold the appeal on this ground, or that there should be a retrial of the issues relating to the incident at the "Family Law Court".

[37]

In conclusion, the appeal is allowed in part. The order of the learned Magistrate dismissing the application is set aside, in so far as it relates to the alleged assault on 24 August 1999 and I order that that issue be retried in the Court of Summary Jurisdiction constituted by a different Magistrate. I will hear the parties as to costs.