[2016] ACTSC 60

APPEAL - Jurisdiction, practice and procedure - appeal from Magistrates Court − principles for determining appeals - appeal against error of law

CRIMINAL LAW - Jurisdiction, practice and procedure - assault - taking of child - lawful excuse - parental responsibility - honest belief

Criminal Law Consolidation Act 1935 (SA), s 80 (1), s 80 (2) Crimes Act 1900 (ACT), s 26

Crimes Act 1900 (NSW)

Family Law Act 1975 (Cth)

Human Rights Act 2004 (ACT), ss 30, 34

Magistrates Court Act 1930 (ACT) s 219B

Court Procedures Rules 2006 (ACT), r 5107(2)(a)

Collins v Wilcock [1984] 1 WLR 1172

Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615

Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112

Hewer v Bryant [1970] 1 QB 357

Parrish v CPP (2007) VSC 304

Police v Gray [2016] SASC 39

Pritchard v The Queen [1999] NSWCCA 182; (1999) 107 A Crim R 88

R v Bruer [2012] SASCFC 107

R v Kimber [1983] 1 WLR 1118

R v Prasad (1979) 23 SASR 161

Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 ('Marion's Case')

R v Tinkler [1859] EngR 92; (1859) 1 F & F 513; 175 ER 832

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

Watson (1986) 22 A Crim R 308

Williams v R [2006] NSWCCA 26

Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645

Judicial College of Victoria, Victorian Criminal Charge Book (29 June 2015), Part 4.13.1.

1. This is a Review Appeal brought by the Director of Public Prosecutions (DPP) under s 219B(1)(a) of the Magistrates Court Act 1930 (ACT) against the dismissal of an information for assault. The question for decision is whether Magistrate Dingwall was correct in finding the respondent not guilty of the offence.

2. The appellant asks that Magistrate Dingwall's decision be quashed and the matter remitted to the Magistrates Court to be dealt with according to law.

3. The appellant has given notice under s 34 of the Human Rights Act 2004 (ACT) (the Human Rights Act) asserting rights under that Act. Neither the Attorney-General nor the Human Rights Commissioner intervened, although both were given notice of the appeal.

4. For the reasons below, the appeal should be dismissed.

5. In late 2012, the respondent's eight-year-old child was, by her agreement, with her parents. The respondent had had some instability in her life, including symptoms of post-natal depression following the child's birth. There were no parental care orders in force for the child. The arrangement was entirely informal, and, although she lived mainly with her grandparents, she also spent time at her mother's home. The child's father played no part in her life.

6. On the evening of 22 December 2012, the respondent visited her parents and child. At about 1.30 am on 23 December she and her mother were still up and talking. Her daughter was in bed, asleep. An argument developed between the respondent and her mother, and the respondent decided to go home and take her daughter with her. She went and woke the child, who resisted, not wanting to go. But she picked her up, carried her to her car, and drove home, where they both went to bed.

7. The child's grandmother called police and gave them a version of what had occurred. Police went to the respondent's home with a locksmith, entered, seized the child and took her back to her grandmother. Police took the respondent into custody and charged her with assaulting her child and her mother, who had tried to intervene.

8. In the Magistrates Court the child and her grandmother gave evidence for the prosecution. Magistrate Dingwall found the grandmother's evidence highly unsatisfactory and exaggerated, and dismissed the charge of assaulting her, after giving himself a Prasad direction.

9. The magistrate found that, unlike her grandmother, the child was a good witness. But he also dismissed the charge of assaulting her, holding that the DPP had failed to discharge its onus of proving beyond reasonable doubt that the respondent lacked a lawful excuse for taking her.

10. Magistrate Dingwall made the following relevant findings:

I am satisfied beyond reasonable doubt that at the relevant time the [respondent] did go into [the child's] room and wake her up and tell her that she was to come with her. [The child] left the bedroom and went to her grandmother. At some point at that time the [respondent] took hold of [the child], picked her up to carry her downstairs... [The child's] hands touched the carpet at some point. On all the evidence I am satisfied that [the child] would have been struggling against her mother's hold and desire to take her home and make the task harder for the [respondent] and perhaps led to [the child's] tipping over at some point in the [respondent's] arm while she was being carried and ... touched the carpet with her hands...

[T]he prosecution has proved beyond reasonable doubt that the [respondent] did apply force to the body of [the child] and that clearly, that force was intentional.

[But the respondent] had parental responsibility of this child [who] was eight at the time, albeit living with her grandparents by agreement with the [respondent] who had the parental responsibility. Then a situation developed, for whatever reason, whether the [respondent] was acting entirely in the best interests of the child or not, from her perception, I am satisfied she made a decision that the child should return home with her that night... Her decision, which according to law she was entitled to make, was that the child was to go with her... The child was of such an age where in my view, one would not generally think it appropriate to let the child make his or her own decision about a matter such as that ... [H]aving regard to the legalities of the parental responsibility resting in the mother... she was entitled to insist that the child go with her, and, if necessary, ... to pick the child up because she was of a young enough age to pick her up .... In my view what occurred was [a not unreasonable] application of force by the mother to give effect to her parental power to insist the child go with her. Clearly a line has to be drawn somewhere at some stage as a child grows, and the authority would certainly suggest that the older a child gets the less power ... the parent can exercise.

11. The appellant says his Honour was wrong in not finding beyond reasonable doubt the act was without lawful excuse. In its Notice of Appeal it asserted his Honour had erred in law:

(a) In "the proper interpretation of the principle of parental responsibility."

(b) By "finding that the principle of parental responsibility made the application of force by the [respondent] to the complainant ... lawful."

(c) In "finding that the concept (or meaning) of parental responsibility contained in the Family Law Act 1975 (Cth) (the Family Law Act) was applicable."

(d) In "finding that a parent has a right to possess their child."

(e) By "failing to interpret section 26 of the Crimes Act 1900 in a way that was compatible with human rights, specifically the human rights of the complainant, including without limitation:

• (i) The complainant's right to recognition as a person before the law pursuant to section 8(1) of the Human Rights Act;
• (ii) The complainant's right as a child to the protection needed by the child because of being a child, without distinction or discrimination of any kind ...pursuant to section 11(2) of the Human Rights Act;
• (iii) The complainant's right not to have her privacy, family or home interfered with unlawfully or arbitrarily pursuant to section 12 of the Human Rights Act;
• (iv) The complainant's right to liberty and security of person pursuant to section 18(1) of the Human Rights Act."

12. In their written and oral submissions the Appellant:

1. Relied on the inviolability of a person's body, and the application of that principle to children, noting that in Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 ('Marion's Case') at 315 McHugh J said modern case law makes it impossible to assert parents have a natural right of absolute control over their children
2. Asserted the magistrate had incorrectly assumed the Family Law Act was the sole source of authority concerning the autonomy of children, and its relationship with a parent's right to control a child.

1. Contended the magistrate had, incorrectly, failed to recognise the rights of a child and the limits on a parent's right to control a child as explained in Marion's case, placing an undue emphasis on parental rights under the Family Law Act.

1. Argued the magistrate had erred in law in finding the principle of parental responsibility at common law and under the Family Law Act made the application of force lawful.
2. Argued the magistrate was wrong to have found a parent has a "right to possess" a child.
3. Argued the respondent's action "was not done for the welfare or protection of the child, nor was it reasonable in the circumstances especially considering she was living with the respondent at the time. The respondent failed to have any regard to the human dignity of the child".

13. The respondent submitted the appeal was incompetent, as the Notice of Appeal was not served personally on the respondent as required by r 5107(2)(a) Court Procedures Rules 2006 (ACT) and s 219C(2)(b)(ii) of the Magistrate Courts Act 1930 (ACT).

14. It appears the Notice was served on the respondent's legal representative. But it was filed in time, and therefore properly instituted. Insofar as the appellant needs leave to dispense with the requirement for personal service of the notice of the appeal I would give it. No prejudice is shown. The respondent through her lawyer had proper notice of the appeal.

15. The respondent was charged under s 26 of the Crimes Act 1900 which provides:

26 Common assault

A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

16. Historically, a distinction was drawn between the offences of assault and battery. An assault required an accused to place someone else in fear of the use of some force, but did not require the application of force. A battery, on the other hand, required the actual application of force. Now, however, the crime of assault covers both concepts: Pritchard v The Queen [1999] NSWCCA 182; (1999) 107 A Crim R 88, 91 at [6]-[7]. Here the appellant said the physical act of picking up her child and carrying her through her mother's home and out to her car amounted to a battery by the respondent.

17. As noted by the Judicial College of Victoria, Victorian Criminal Charge Book (29 June 2015), Part 4.13.1., to prove the crime of assault, which includes a battery, the Crown must prove beyond reasonable doubt the following elements:

(a) The accused applied force to the complainant's body;

(b) The application of force was intentional or reckless; and

(c) The application of force was without lawful justification or excuse.

See also Parish v DPP (2007) VSC 494 at [45].

18. Magistrate Dingwall found elements (a) and (b) proved beyond reasonable doubt but not that the application of force was without lawful justification or excuse.

19. The most commonly encountered lawful justifications or excuses for assaults are consent, (such as where a patient consents to surgery), touching in the course of an ordinary social activity (such as a kiss of greeting), exercising a lawful power of arrest (usually by police), self-defence, ejecting a trespasser, and lawfully correcting a child.

20. The principle of the sanctity of the body, and the associated defences to charges of assault, were explained by the English Court of Appeal in Collins v Wilcock [1984] 1 WLR 1172, 1177 where Robert Goff LJ and Mann J said:

The fundamental principle, plain and incontestable, is that every person's body is inviolate ... The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subject to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence for the prevention of crime.

But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped ... Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life ...among such forms of conduct ... is touching a person for the purpose of engaging his attention ...

In each case, the test must be whether the physical contact ... has, in the circumstances, gone beyond ... generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case...

21. At common law where an assault is alleged, it is always for the prosecution to prove beyond reasonable doubt that no reasonable justifications or excuses are open on the evidence: Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 at 657.

22. The law acknowledges there are times when a parent may have physical contact with a child. Traditionally, the law recognised a right of parents, guardians and teachers to administer physical punishment to a child. Society's values have now changed, so that it is no longer regarded in Australia as acceptable conduct for a teacher to hit a child.

23. It is still the case however that a parent may administer physical punishment. In Police v Gray [2016] SASC 39 a parent was on appeal found not guilty of smacking a 12 year old boy when it was found the punishment was in the circumstances a bona fide action for the purpose of parental correction. There no parenting orders were in force, and the child lived mainly with his mother, but an increasingly larger proportion of his time with his father.

24. Parents, guardians and teachers must, at times, have non-punitive physical contact with children and, at times, let others do so. A new mother nurses and feeds her baby and changes nappies. A father picks up a child to place him on a swing and pushes the swing and the child. A parent allows a doctor to give a child an injection. A teacher picks up a sick and sleeping child and takes the child to a sick bay. Children cannot survive childhood without having physical help and encouragement from adults.

25. Where an assault is alleged, it is always necessary to look at the surrounding circumstances. Whether a parent has a reasonable excuse for what would otherwise be an assault on a child depends on the nature of the physical contact, the age and size of the child, and the reasons for the contact. Minds might reasonably differ about whether, based on a particular set of facts, a reasonable excuse is shown. The concept of reasonable excuse involves a consideration of society's current standards.

26. It is clear from the appellant's submissions to Magistrate Dingwall and to me that it based much of its argument, not on what a parent may do in furthering the child's interests, but on principles concerning physical punishment.

27. There was never any suggestion here that the respondent was punishing her child. The case concerned the circumstances when a parent may control a child.

28. At a time when the law spoke of the rights of a parent with custody of a child Lord Denning said in Hewer v Bryant [1970] 1 QB 357, 369:

The legal right of a parent to the custody of a child ends at the eighteenth birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

29. In Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112 170 at [D] Lord Fraser said:

[P]arental rights to control a child do not exist for the benefit of the parents. They exist for the benefit of the child and they are justified only insofar as they enable the parent to perform his duties towards the child and towards other children in the family.

30. In Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615, 626 Gibbs CJ said:

[L]egal custody ... (in the absence of special order) carries with it a bundle of powers, including the power to control the child's education, choice of religion and property as well as the personal power of physical control

31. In Marion's Case Brennan J, on page 277 said of a child:

[T]he parents are his or her natural guardians and custodians...Guardianship and custody impose responsibilities and confer powers sufficient to enable parents to discharge those responsibilities... The responsibilities and powers of parents extend to the physical, mental, moral, educational and general welfare of the child.

32. At page 240 Mason CJ, Dawson, Toohey and Gaudron JJ said :

[T]he overriding criterion of the child's best interests is itself a limit on parental power.

33. The Family Law Act has important provisions concerning parental responsibility, an idea which has replaced concepts such as custody. Sections 61B and 61C(1) provide relevantly:

In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

61C Each parent has parental responsibility (subject to court orders)

(1) Each of the parents of a child who is not 18 has parental responsibility for the child.

(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or remarrying.

34. Although the respondent gave her permission to her parents to have her daughter live with them, that did not detract from her obligations as a mother, especially given no court had made any parental responsibility orders. In my view, her obligations carried the right, depending on the circumstances, to have physical contact with her daughter.

35. In making his findings, the learned magistrate, referring to what led to her departure with her child, said:

[A] situation developed, for whatever reason, whether the [respondent] was acting entirely in the best interests of the child or not, from her perception, I am satisfied she made a decision that the child should return home.

36. I infer from those words his Honour had no firm view, one way or the other, about the respondent's motives. The appellant submitted that his use of the words "for whatever reason" suggested he thought the respondent had base motives. I do not accept that, given their context.

37. There was little attention given by either party in their submissions to the magistrate or to me as to the evidence of what the respondent was thinking when she took her child home.

38. The respondent did not give evidence before the magistrate. But she consented to a record of interview with police on the day after the event and the interview was in evidence. In the course of that interview, when questioned by police about her motivation in taking her daughter home, she said her daughter had been calling her all day asking her to come and see her. She had felt sad about not being with her, adding:

[O]bviously as the mother and the sole carer, um, having sole custody, I feel it's my responsibility to, um, you know, generate some time with her.

39. She told police she had sole custody against the child's father, and that her parents had never applied for custody. Asked about the arrangements for the child to live with her mother, she said her mother had:

[s]ort of taken charge ... Taken over her life ... And I kind of feel quite sad you know, and quite depressed, because it's my job and I feel as though I'm negligent, if that makes sense.

40. She said her mother had a stronger personality than hers so she had not been able to exercise the role of mother as she might have:

I've tried my best to try and get [her] just to come and stay longer but mum has intervened ... [She] is happy to come with me. [Mum] causes her stress levels to increase. And because I'm her mother ... I'm concerned ... [S]tress isn't healthy for people, especially little children, because they don't understand ... I'm concerned about the welfare of [the child] I'm concerned that she doesn't eat that much. She doesn't like to eat the food that mum cooks. And I'm also concerned a little bit about the environment, the stress.

41. When the police spoke to the respondent's daughter, they did not question her about whether she had been calling her mother all day to get her to come and see her. They did ask her about her mother and activities they enjoyed together and it was clear they had enjoyed times together; for example the child, when questioned, said she and her mother would sometimes draw or do some cooking.

42. The respondent gave evidence in other proceedings on 11 September 2013. Some evidence she gave there concerned the events of 23 December 2012 and was, as the magistrate found, at odds with what she told police in her record of interview. But the inconsistencies concerned whether she had applied force when taking her daughter out of her mother's house. In rejecting the respondent's evidence that she had not applied force, he made no findings about what she had told police about her concerns for her daughter. The record does not show he heard any argument about that. As both parties were concentrating on the physical aspects of the alleged offence that is not surprising.

43. I consider Magistrate Dingwall was not in error, and it was open to him to find the DPP had not excluded lawful excuse as:

(a) She was the child's mother, although the grandmother was the child's primary carer;

(b) There were no parental responsibility orders in force;

(c) The child was living with her mother's parents with the respondent's consent;

(d) The consent was, in my view, capable of being withdrawn;

(e) Although the child was not then living day to day with the mother, she still had obligations to the child;

(f) She was entitled to take reasonable steps to fulfil her obligations;

(g) The child was only eight years of age, and the respondent was entitled to overrule her daughter in an argument about whether she was to go to her home or stay with her grandparents;

(h) There was the uncontradicted evidence the child had been calling the respondent, and the respondent's concerns as expressed to police.

44. I do not consider his Honour erred in interpreting the principle of parental responsibility; indeed his findings were consistent with it.

45. The magistrate's findings did not amount to a "new defence", as was argued. Nor did they amount to treating a child as an inanimate object "owned" by a parent. Those somewhat dramatic arguments misconstrue and misstate the principles of parental obligations.

46. The appellant said the child's human rights were violated by reason of the assault, and this was; another example of children [being] treated as though they were pawns or chattels in disputes between adults. However, I regard that as somewhat emotive language, more appropriate to political discourse. As the respondent had a lawful excuse to do what she did, it follows that the arguments concerning the Human Rights Act have no application.

47. The appellant argued the findings by the magistrate interfered with the child's right as a person before the law (s 8(1)) and her right as a child to have protection (s 11(2)), her right not to have her privacy, family or home interfered with unlawfully or arbitrarily (s 12) and the right to liberty and security (s 18(1)). Given the simple proposition that the appellant failed to prove its case beyond reasonable doubt before the magistrate, I see no place for those principles. The Human Rights Act does not displace the appellant's obligation to prove an alleged offence beyond reasonable doubt. If it did, there would be a more significant interference with the rights of the respondent.

48. Mr J White SC who appeared for the appellant said the magistrate had been "excessively diverted" by the absence of extant court orders. I reject that construction of what his Honour did. But the absence of orders was obviously a significant matter, as his Honour found.

49. Mr White regarded as important that the child was taken "against her will". The same point was made several times to the magistrate. However, this was a case about an eight-year-old child and, in my view, it gives these relationships an air of unreality to speak of a six or seven or eight-year-old being bossed around "against their will." The fact is, parents need to boss children around from time to time and children commonly do things they do not want to do.

50. Mr White relied on Watson (1986) 22 A Crim R 308 but I do not consider that advances the matter. It concerned the right of an accused Aboriginal man in a murder case to call expert evidence of a tribal custom permitting a husband to discipline his wife by beating her. There was no question here of punishment, or of expert evidence.

51. Mr White spoke of an assault as an attack on autonomy. This also is a little unrealistic when one considers the age of the child.

52. Mr White, in his written submission of 2 February 2016, submitted s 58(3) of the Criminal Code 2002 (ACT) imposed a burden on the respondent before the magistrate to prove lawful justification.

53. This argument was not raised before the magistrate or in oral submissions before me.

54. Mr Edmonds referred me to R v Kimber [1983] 1 WLR 1118, 1123 for the proposition that absence of lawful excuse is an element of the offence.

55. Even accepting the correctness of the argument, the respondent amply discharged her burden here, where she raised the lawful excuse issue at an early stage. Merely raising the issue was sufficient, in my view, to discharge the evidential burden.

57. In the course of argument, I raised with counsel whether an honest belief the respondent had a right to take her daughter home might have been a good defence, and I received helpful written submissions from both.

58. Support for the concept in a case such as this may be found in R v Tinkler [1859] EngR 92; (1859) 175 ER 832, Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, at 591, per Dawson J, Williams v R [2006] NSWCCA 26 at [43] per McClellan, CJ at CL and in R v Bruer [2012] SASCFC 107, at [61]-[64].

59. I am grateful to Mr White and Mr Edmonds for their additional assistance on that issue, but, in the end, I think the case is to be resolved on the principles of lawful excuse, so it is unnecessary to consider further the cases involving claim of right.

60. As the appeal is to be dismissed, the appellant must pay the respondent's costs: Section 219F (8) of the Magistrates Court Act.

62. The appellant is to pay the respondent's costs of the appeal.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.