CASEY -v- GERACE [2015] WASC 92 (18 March 2015)

3 I considered that the parties' concessions were rightly made. Accordingly, orders were made at the hearing of the appeal that gave effect to those concessions. I indicated that I would publish short reasons explaining why I had agreed that orders should be made in the terms proposed by the parties. These are those reasons.

4 The appellant's daughter was 12 years of age at the time of the alleged offence. The prosecution case was that the appellant and his daughter had argued and that the appellant had, during the argument, grabbed his daughter by the arms and forcibly lifted her up from a sitting position and shook her. He was alleged to have repeated this action four times. The complainant suffered pain and bruising to her arms as a result of the assault.

5 The appellant admitted that he had used force against his daughter by grabbing her arms and lifting her up at least four times during the argument (he denied that he had shaken her). Accordingly, he admitted that he had assaulted his daughter but he relied on s 257 of the Code to submit that it had been lawful for him to use force in the circumstances. Section 257 provides that:

It is lawful for a parent or a person in the place of a parent, or for a schoolmaster, to use, by way of correction, towards a child or pupil under his care, such force as is reasonable under the circumstances.

6 The learned magistrate identified the issue to be determined in the trial as 'whether the prosecution have proven beyond a reasonable doubt that the force used by [the appellant] was unlawful insofar as the force used was unreasonable under the circumstances and was not used by way of correction' (reasons for decision, page 4). There was no challenge to her Honour's formulation of that issue.

7 The only witness called by the prosecutor was the complainant. The appellant elected to give evidence. He did not call any other witness.

8 Consequently, the parties sought to contest the issue identified by the magistrate and raised by s 257 of the Code according to the evidence of what had actually occurred. The prosecutor invited the court to infer that the force used by the appellant was unreasonable and/or had not been used by way of correction from the nature of the assault alleged and the circumstances in which it had occurred, including matters such as the age and physique of the complainant.

9 The magistrate referred in her reasons to the judgment of White J (with whom Pidgeon & Steytler JJ agreed on this point) in Robert John Cramer v The Queen (Unreported, Western Australian Court of Criminal Appeal, Library No 980620, 28 October 1998) in which his Honour stated:

In R v Terry [1955] VicLawRp 22; [1955] VLR 114, Sholl J pointed out that there are strict limits to the right of a parent to inflict reasonable and moderate corporal punishment on his or her child for the purpose of correcting the child in wrong behaviour. Such limits are: (i) the punishment must be moderate and reasonable; (ii) it must have a proper relation to the age, physique and mentality of the child; (iii) it must be carried out with a reasonable means or instrument. That case is referred to in the decision of Kennedy J in Higgs v Booth, unreported; SCt of WA; Library No 6420; 29 August 1986), in which case his Honour pointed out that the provisions of s 257 of the Criminal Code reflect the attitudes of the 19th Century and should be applied having regard to the standards currently prevailing in the community. His Honour also pointed out that the force applied is to be used only by way of correction and not of retribution.

10 Her Honour then cited the following passage from the judgment of Kennedy J in Higgs:

Cases of the present nature rarely come before the courts, for what must be fairly obvious reasons. When they do, the decisions reached provide very little guidance for future cases, the circumstances being so infinitely variable. Section 257 of the Code itself is largely representative of 19th Century attitudes. Its reference to the 'correction' of an 'apprentice' by the use of reasonable force requires no comment. What is clear, however, is that the section is to be applied having regard to the standards currently prevailing in the community, those standards having altered markedly during the course of this century. Furthermore, what is 'reasonable' in any case will depend upon a consideration of all the relevant circumstances, including, of course, the age, sex, physique, health and mental development of the child. In addition, it is to be observed that the 'force' is only permitted to be used 'by way of correction', and not simply by way of retribution.

11 The magistrate, with those passages in mind, then posed the question, 'What are the 21st Century attitudes or standards currently prevailing in the community with respect to correction of children by way of physical force?' That question was posed under in the heading in her Honour's reasons to which proposed ground 4 referred ('21st Century Attitudes'). Her Honour continued:

My research indicates that there are numerous articles, research papers and books written about the 21st Century attitude towards the correction and punishment of children.

The research all indicates that any punishment or physical correction of children is detrimental to their mental health and wellbeing as an adult. Some countries around the world have banned smacking of children completely. Although all Australian states prohibit excessive punishment in their legislation, some states have clarified the scope of parental discipline.

In order to discuss the effectiveness of discipline or correction, it is imperative to clarify the difference between discipline and punishment (reasons for decision, par 4).

12 Her Honour referred to five academic articles concerning the effect of disciplining children and to changes that were made to the Crimes Act 1961 (NZ) in relation to parental control as forming part of her research. Reference was also made to the conclusions expressed in an unidentified article about the effect of the legislative change in New Zealand and to articles 'in 2013 and 2014' that 'continue with the trend that any correction of a child's behaviour should not use physical force because of the long term detrimental effects upon their mental health and the physical wellbeing of the child' (reasons for decision, page 10).

13 The articles to which the magistrate referred in this section of her reasons were not tendered in evidence - as has been indicated, the parties did not contest the issues of reasonableness and the purpose for which the force had been applied by the appellant by reference to academic research or legislative changes in other jurisdictions. Further, the magistrate did not inform the parties that she intended to undertake the research to which she referred in her reasons and they were not given an opportunity to either address her on whether she should be allowed to undertake that research or the effect of the research that she had undertaken.

14 As would be expected, the research to which her Honour referred in her reasons was directly relevant to the findings that were made. Her Honour stated:

Was the force used by way of correction of [the complainant] by [the appellant] or was it used in retribution [the complainant] because of [the appellant's] pentup anger and frustration towards [the complainant] because of her inconsiderate behaviour? It must be remembered that the force used must be commensurate with society's standards at the time. In 2014 the predominant standard is that any physical punishment by way of correction of a child or adolescent is detrimental to their physical and mental development (reasons for decision, par 44).

15 The magistrate found that the force used was not reasonable in all the circumstances and was not used in the course of correction; rather, the injuries sustained by the complainant were inflicted out of anger and retribution.

16 Criminal proceedings are adversarial. As McHugh and Hayne JJ observed in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106:

A criminal trial under the common law system remains today, as it has been for many centuries, based on the theory that it is an adversarial contest between the Crown and the accused. Each party gathers its own evidence, tenders its own evidence and crossexamines the evidence of the opposite party. Each party selects the grounds upon which it relies and argues them without assistance from the court. For its part and subject to statutory exceptions, the court's role is generally limited to determining what legal rules govern the issues selected by the parties and whether the evidence and contentions of the parties are within those rules [51].

17 Similarly, in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, Mason J observed (in circumstances where a Family Court judge had received communications about an application that he was hearing in his chambers and in the absence of the parties and their legal representatives):

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone ... It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide (350).

18 (And see also Le v Magistrate Barbara Lane [2014] WASC 494.)

19 Regrettably, the magistrate infringed the cardinal principle to which Mason J referred in Re JRL in deciding the prosecution by undertaking her own research out of court and taking into account material that was not evidence.

20 This is not an appeal in which the proviso contained in s 14(2) of the Criminal Appeals Act 2004 (WA) can be applied. As the respondent rightly submitted, 'the impugned material was central to her Honour's conclusion that any use of force is unreasonable, leading to the inevitable conclusion that the appellant's conduct was not lawful in accordance with s 257 of the Criminal Code' (respondent's outline of submissions, par 6).