Director of Public Prosecutions v Tiller

Supreme Court of NSW|2022-11-03|Before: McNaughton J, Neighbourhood Association DP

Solicitors: Solicitor for Public Prosecutions (Plaintiff) Canberra Criminal Lawyers (First Respondent) Crown Solicitor for NSW (Second Respondent) File Number(s): 2022/182882 Decision under appeal Court or tribunal: Queanbeyan Local Court Jurisdiction: Criminal Date of Decision: 22 March 2022 Before: Magistrate Clisdell File Number(s): 2021/247177

Evidence at the hearing

A conversation recorded by police on 16 March 2021 with the first respondent was tendered through the officer in charge. Following a caution, the first respondent stated that the complainant was new to the school. She had taught Year 1 the previous year and accordingly knew her Year 2 children fairly well, but because the complainant was new, she did not know him so well. She had been having a "hard time … working him out". She was working out whether his constant calling out and talking when the students were working was because "he needs help, he doesn't understand, or whether he's actually, um, knows what the expectations are and is choosing to not follow them." He was "interrupting a lot. He was really struggling to follow instructions."
The first respondent stated "we've, sort of, got to a point where it was a problem." This led the first respondent to speak with the complainant's mother (who will be referred to in this judgment as "Ms L"), the day prior to the alleged offence. The first respondent stated it was an "ill-planned conversation", she did not "have some of the things in place that I should have, like a specific list … of what to go through." She "made it more as a casual call, and I would never do that, in hindsight. Um, being a fairly new teacher, lack of experience."
Ms L gave evidence at trial that during this conversation the first respondent stated she was beginning to "pick on" the complainant. Ms L was cross-examined about this and it was put to her that it was unlikely that the first respondent would have said she was picking on the complainant. In the recorded conversation with police the first respondent said that she did not remember if she used the word "picking" but "did feel that [she] was giving [the complainant] too much negative feedback." She further stated, "I thought that the relationship was becoming negative and that I acknowledged that I thought our relationship was becoming negative … and that I needed to do something about that."
The alleged offences occurred towards the end of the school day on Tuesday 9 March 2021 while the complainant and other students were packing up the classroom, including by collecting pattern blocks from the floor and placing them in a box. The first respondent described to police that she saw the complainant with a "little bunch" of blocks in his hands, holding the blocks in front of his pants, "really close", to another child's face, who was sitting in front of him. She stated she had a "reflex reaction, I'm, like, he's touching a part of his body, and he's really close to another child. It was a reflex, complete re, reflex thought, complete reflex action … of, that's not, that's not appropriate."
She stated: "It was, was the first place my, my body went to. And I yelled out, Stop. That's not appropriate. He didn't stop. So I was close enough, complete reflex. I did not think. All I saw was he was still standing like this. And I pushed his arm away from behind. But it was a complex [sic] reflex. I wasn't, wasn't thinking about the speed, the contact. I was thinking about nothing, then the reflex. And it, it was a, it was a reflex to push him arm away … so that his hands would not be so close to the other student's face and he, his hands wouldn't be on that part of his body. … And it was a completely unthought, there was no, they had no, I did not think. It was instantaneous … um, from saying the, Stop. That's inappropriate, and seeing that he hadn't stopped. … And that, that was it. That was as much that went into it. And then, obviously, I realised what had happened, and I was, like, right. Need to, need to act in a thought out way now."
She further stated: "That was a complete reflex, and not appropriate. And I knew instantaneously, absolutely instantaneously. I asked him to step outside the classroom. I told the other students what I expected. He was just, so if, if the doorway to my classroom, this is my classroom, and the doorway is here. … He's not in the doorway visibly. He's just here, just so he had, I didn't see what his response was. He looked, when I asked him to step out, he still looked at me like he was a bit confused. And I just, I, I, I continued to settle the class, but he sort of just looked at me and stepped out of the class, as I'd asked him to. … And, um, I was, like, OK. Let's make sure everyone's calm. Calm. I can't turn my back on the class if it's all crazy. So I just made sure that the packing up was continuing. And then I stepped out. There was a couple of minutes. It was sort of deliberate to just give him a little bit of space … and to give me a little bit of space. And then I just stepped out. And the first thing I asked if, [the complainant], are you OK? And I also apologised, because I should not have hit his hand away. … There's no, there's no, in, in no circumstance should I have hit his hand away, and I apologised."
At a further point in her evidence, the first respondent stated: "I saw him holding a little, because normally you wouldn't hold a little pile of pattern blocks, like, all neatly … like, in a square so that they made a little shape, a little square shape. … Normally you just grab a bunch of pattern blocks and put them in the thing. You wouldn't normally have them in a little bunch … and hold them on your … [w]hich is … what I saw."
The first respondent further stated that after she apologised for yelling at him, the complainant started to cry and stated that he never knows what to do. He told her that he did not understand how they did things sometimes and did not understand the work.
The first respondent went on to say that after the complainant's sister picked him up, she (the first respondent) walked straight to a supervisor's office and stated "I've made a really big mistake … I'm mortified … at what I've done … but I can't undo it. … I can't undo a reflex reaction. It was in a, it was not, it, it is never excusable or appropriate, um, and I totally get that." She further stated "I really did try to make sure that I did what I could for him … at that time, because yeah. Because that, something like that should never happen at school."
The first respondent clarified that the blocks were in front of the complainant in his hands outside his pants. She stated: "Um, my brain probably automatically meant to, he's using it as a penis. But I don't want to, you know what I mean. What I, exactly what I saw was the blocks being held in a little neat … pile to make something he could hold onto with two hands at his … crotch, very clearly pointing it within this far of another's child's face." (Emphasis added.)
She further stated: "I'm not implying that he meant anything sexual by it. I didn't have time to think about motive. … I'm not accusing him of anything sexually orientated at all."
And: "But that's what I saw, a penis being held very close to another child's face, and that he didn't stop when I asked him to stop."
And also: "I acknowledge that, that my reflection on this incident is I am far more stressed than I actually thought I was. … I thought I was handling it really well. And obviously, probably not, if I, you know, if reflex rules over reason. … It was a complete reflex."
The evidence from the complainant was adduced by playing an earlier interview recorded on video. A transcript of the interview was provided to the court as an aide memoire. The video interview with the complainant had been conducted on 1 August 2021. The complainant was not cross-examined.
The complainant stated that the first respondent smacked him when they were packing up blocks, and the smack caused a bruise on his arm. He stated that the first respondent thought he was "doing something very silly", but he wasn't. When asked why he thought the first respondent thought he was doing something silly he stated he was holding the blocks near the top of his right leg. Further, before the first respondent smacked him, she said the complainant's name in a loud voice and in the middle of the smack, she told him to get out of the room. The complainant then left the room. He also stated that after the bell rang, the first respondent said, "sorry that I did that." The complainant stated that the bruise was very swollen, quite sore, and it really hurt when he tried to stretch it a little bit. He had to stay home for two days.
Two photos depicting a bruise on the complainant's left shoulder were also tendered. They were taken two days after the alleged assault.
As referred to above, the complainant's mother, Ms L, was called to give very short evidence about the conversation with the first respondent the day before the alleged assault. Her evidence was that the first respondent called her during a busy afternoon while she was at work. She stated: "she introduced herself to which I said that it was an unusual time to receive phone call [sic], she said that it wasn't a very nice reason for a phone call, and I asked her what, was the problem. I highlighted that it wasn't a great time to talk because I was in charge of [a very busy work environment] at the time." The complainant's mother continued: "She went on to tell me that she was ringing to notify me that [the complainant's] behaviour was unacceptable, that it was disruptive in class, he was being very talkative, that she was having to call his name repeatedly, that it was getting to the point where she was picking on him, but it wasn't very nice, and she was finding it hard to [control] herself with him."
She further stated that she told the first respondent that she "found it unusual" because there had been no complaints about his behaviour at his two previous schools, pre-school, or day-care.
In cross-examination, it was confirmed that the complainant's mother took contemporaneous notes of the conversation. This was clarified to mean that she "jotted down on a piece of paper [at her work] the words 'picking on [the complainant]'", and that further details were included in an email she wrote to the school that evening. The email was not in evidence. She stated her contemporaneous notes included that the first respondent was "beginning to pick on my son, and it wasn't very nice, and she was starting to lose control." It was put to the complainant's mother that the school's note of her email complaint was that the first respondent was bullying her son. The complainant's mother stated she was not surprised by that characterisation of her complaint. The last question in cross-examination was rejected - it was whether the complainant's mother had ever smacked the complainant when he misbehaved. When rejecting the question, the second respondent indicated that the first respondent would need the "express permission" from the parent to come within the definition of "lawful chastisement" (actually called "lawful correction") in s 61AA of the Crimes Act.
Section 61AA was further discussed after the conclusion of the prosecution evidence (but before the prosecution case was formally closed). The second respondent indicated to counsel for the first respondent that he should "forget about the lawful chastisement bit" as "I think the problem is the formal consent that's required these days. The law is an ass …". The second respondent invited the first respondent to concentrate on the defence in s 418 of the Crimes Act, being self-defence of another.
It is convenient now to set out the relevant portions of s 418 of the Crimes Act which reads as follows: 418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary - (a) to defend … another person, … … and the conduct is a reasonable response in the circumstances as … she perceives them.
The prosecution case then formally closed. No application was made to the second respondent to dismiss the matter on the basis of no prima facie case. The transcript then sets out a heading "CASE FOR ACCUSED". However, what occurred indicates a more informal course was followed. The first respondent's representative stated the following: "EDMUNDS: So, your Honour obviously the High Court has said that we can no longer obtain the extremely useful Prasad Direction that often was sought and granted in various matters, if notwithstanding that your Honour was in a position to give any sort of informal indication beyond what your Honour has already said. The issue obviously, your Honour is the use of valuable court time. The defendant is ready to give lengthy examination-in-chief, I think that would take at least half an hour then we have the Sergeant's cross-examination, I would fully expect that will take more than 15 minutes, so we certainly wouldn't get through all of that by 1 o'clock, given though your Honour that this is a matter where your Honour has the defendant's interview and of course, the High Court's has perhaps more usefully said in the decision of Nuwan[ [2] ] that the Liberato direction applies equally to a defendant's police interview with a video-recorded-interview with the police as it does to the evidence in court, so in terms of what actually happened in the classroom your Honour it is going to be an oath on oath case. And I'm using oath in the loosest possible sense in terms of young [the complainant's name] because your Honour, without any criticism [of the] interviewing officer. It's not even made categorically clear that he does fully understand the differences between truth and a lie. The process that was gone through was quite brief in that regard and I didn't see, your Honour an actual agreement or undertaking or promise by [the complainant] to tell the truth, what was put to him was words to the effect of, 'How about we only tell the truth today', and there's a 'Mm' or a nod, so your Honour I'm sure your Honour understands what I'm putting to you - I'm more than happy to make any further submissions if they would assist at this point - or perhaps more specifically if your Honour had any particular concerns, but given the informal process that I'm inviting your Honour to engage in it may not necessarily be appropriate. Perhaps I would say this, finally your Honour, very briefly it's quite clear in my submission that however hard the defendant may have been on herself in her interview and whatever her personal view about whether what she had done was in breach of school policy or the Education Act, or whether it was contrary to - PROSECUTOR: ..(not transcribable).. HIS HONOUR: It's a criminal offence, it's not breaching policy. EDMUNDS: Exactly your Honour. That's the point I was getting to, and your Honour all of her comments to the effect that it was inexcusable, I'm mortified et cetera, your Honour the defendant is not a lawyer, it's quite obvious, her personal view at that time about the appropriateness in the broadest possible sense of that term of her actions, is not the issue. The issue is whether the force was excessive or reasonable and whether it was used due to an apprehended imminent threat that the student - because of the very close proximity your Honour saw - I would submit that's firmly less than 30-- HIS HONOUR: It was..(not transcribable)..than 15 centimetres from-- EDMUNDS: Something in the-- HIS HONOUR: ..(not transcribable)..an eight-year-old child? EDMUNDS: --that, your Honour quite apart from the sexualised gesture which was entirely open - on also the young boy's interview about where he had his hands, close to his groin - and your Honour's also read albeit it's second hand in other statements that he told his mother at some point that the teacher 'Must have thought I was doing a pee', were the words that he used, which is all entirely consistent with what the defendant said in her interview about what she saw and then the defendant was at great pains - on one view not necessarily assisting herself - but at pains, to make clear that it was instinctive reaction then, to do what she did. She didn't give it a great deal of thought, probably regretted it, on reflection but again your Honour that is not a formal admission of guilt to the charge. Your Honour also, obviously has the evidence that the defendant is not recorded and also that sadly she has already lost her job as a result of this matter. HIS HONOUR: The witness? EDMUNDS: Yes. The final point I'd raise at this stage your Honour is, yes times have changed, but in my submission, they have not changed that much surely that if a teacher perceives that there is a threat to another student in class and that the only way to deal with it is to use some physical force. In my submission a teacher must be legally permitted to make that call as it were in the classroom-- HIS HONOUR: Even if the Department thinks otherwise? EDMUNDS: That's the submission, your Honour. So, again I hope I won't be accused of trying to have my cake and eat it too, but-- HIS HONOUR: I take that as a submission that [I] could never be satisfied beyond reasonable doubt. EDMUNDS: Yes. Because again the defendant's evidence, if she jumps in the box is - well, this is the height of the prosecution case. HIS HONOUR: It is. Yes. EDMUNDS: Yes..(not transcribable)..your Honour understands."
It can be noted from this exchange that the first respondent's representative was attempting to get some informal indication from the second respondent as to whether or not the second respondent wished to hear further evidence from the first respondent. It can be noted further that the first respondent's representative decided, on the basis of the exchange, that he was prepared to proceed on the basis of the prosecution case alone and not to call evidence in the defence case.
The transcript then recorded the following: "PROSECUTOR: Your Honour, on the point of self-defence the prosecution can then see that in the mind of [the first respondent] at the time, subjectively she has reacted in a way that she thought was appropriate, as [the complainant] is on the ground with blocks in front of him. Your Honour, the ultimate submission of the prosecution is that it was not reasonable. The behaviour - the conduct of [the first respondent] goes beyond the self-defence of another and constitutes an assault."
The transcript continued. "[PROSECUTOR]: Your Honour, the evidence of [the first respondent] is that she immediately has that reaction to smack his arm away, she at no point uses any verbal commands to [the complainant] -- HIS HONOUR: No, that's not the evidence. The evidence is she called out his name. PROSECUTOR: As she was smacking him, that is the evidence of [the complainant]. [The first respondent's] evidence is that she never made any remark. EDMUNDS: That's not the evidence. HIS HONOUR: No. That isn't the evidence. What my recollection of the evidence-- EDMUNDS: No. In her interview your Honour - with respect to my friend - and I accept this differs slightly from what [the complainant] says, but yes [the complainant] says, '[the first respondent] called out my name', the defendant in her recorded interview says that she used the words, 'Stop. That's inappropriate'. HIS HONOUR: Yes. She certainly said something. EDMUNDS: It'll be in the transcript. HIS HONOUR: Yes. PROSECUTOR: Your Honour moving apart, and I accept that from my friend, we also have the evidence before the court of the phone call that took place the day before. And that phone call between [Ms L] and [the first respondent] in relation to the behavioural issues in the classroom, [Ms L] was insistent on her evidence that the words used by [the first respondent] was that she [was] beginning to pick on her son. Your Honour in context of that, we move to the following day where they're in the classroom, the incident occurs and as [the first respondent] has identified inappropriate, complete reflexes have moved [the complainant's] arm by smacking it. Before the court are two photographs that [have] been taken by [Ms L], days - I believe on 11 March-- HIS HONOUR: There's an injury towards the front of his shoulder. PROSECUTOR: Yes, your Honour. And further to that there is the evidence of [the complainant] about the bruise that he had and the fact that he had days off school because of the injury. HIS HONOUR: His mother said he was - got days off because he was frightened. PROSECUTOR: Your Honour, the prosecution would submit that the conduct of [the first respondent] was not a reasonable response in the circumstances that she perceived them. She's in a classroom surrounded by children and she uses physical contact on an eight-year-old child, the prosecution would submit that it wasn't in an act of self-defence and that an assault did occur."
This was the conclusion of all submissions by the parties. It was clear at this point that: 1. The first respondent conceded that there was a prima facie case, 2. The first respondent was no longer pressing the defence of lawful correction pursuant to s 61AA of the Crimes Act; 3. The only issue left for the second respondent to determine was whether the defence of self-defence of another under s 418 had been made out. As to this: 1. The prosecution conceded that the first limb of s 418 had been made out (i.e. that the person believes the conduct is necessary to defend another person), 2. The issue which required determination by the second respondent was whether the first respondent's conduct was a reasonable response in the circumstances as she perceived them.
I note in passing that this concession by the prosecution in the Local Court that the first limb of s 418 was made out was possibly overly generous. The first limb of s 418(2)(a) requires that a person must "believe" that the "conduct is necessary to defend … another person". Given that the first respondent stated that her reaction was "a big mistake", a "reflex reaction" which she could "never undo", that she was "mortified" and it was "never excusable", it may be that the first limb was not necessarily made out on the evidence. However, given the prosecution's concession, and the way the issue was framed, the issue squarely for the determination of the magistrate was, under s 418, whether the conduct "is a reasonable response in the circumstances as … she perceives them."
Notwithstanding this reservation, in the context of a busy Local Court list it is appropriate, indeed desirable, for the issues for determination to be narrowed in this way.

The second respondent's reasons and determination

It is appropriate to now set out in full the magistrate's reasons and determination. "HIS HONOUR: Gee I wish I could go back and sue all my teachers from primary school. This is a classic case of the insanity that has overtaken society in the 21st century, it started in the 1980's when we advised students that they had rights, and we took away the control and power of, firstly parents then teachers, then the police, and even the courts. So, what do I get in court on a regular basis, I get people from a generation who never experienced discipline at school and never had [a] report saying they'd failed, who never came last in a race, come in here and there studious t-shirt and thongs, and say, 'What ya want mate?'. Is that how we want our society..(not transcribable)..police are treated with absolute contempt every day of the week every time they're on duty, they're called. 'White effing C's, they're called black effing C's, they're called everything under the sun. Who would be a schoolteacher, my daughter lasted [a] year as a schoolteacher and gave it away, had a nervous breakdown, who would be a schoolteacher today? [The first respondent] lost her job. It seems we had a fantastic primary school teacher, dedicated, organised, well meaning, and she's sacked. One of my former school mates who I'm still mates with from boarding school nearly 50 years later, was a schoolteacher in primary school, a male, one of those extinct species in primary schools, who was the only male teacher in the school, so whenever there was a discipline problem, he was called in to sort out the class. One day a kid raising across the asphalt slips and falls, he runs over picks up the kid's - comforts it, and has a complaint made that he was sexually assaulting the kid. It never went anywhere but he quit. This is what is happening with our world today. Now let's go to the, let's start with [Ms L]. I have never heard anything as stupid and unbelievable as a teacher ringing a [parent] and saying, 'I'm picking on your kid', that did not happen, I don't accept it for a moment. What I do accept that was probably said, was that either, 'I don't want you to be concerned that I'm picking', or 'I'm concerned that I might be seen as picking on him because I'm always having to call him out'. We all know the kid that wants attention in the classroom and the fact that he didn't play up in kindergarten in first class, just means that he got a little bit older and a little bit more bold when he got into second class. I never got into trouble in kindergarten and first class, did get into trouble in second class. The insanity of allowing lunatics to run an asylum has become endemic in our society and the courts cop criticism all the time because we don't stand up for what people see as proper values. One of the problems we've got is 3,000,000 pieces of legislation that control every breathing moment of our lives and whether you walk down the street in the wrong direction, or that you don't use your indicator in your car as you leave a roundabout, whether you cough inappropriately, whether you pick your nose in public, the whole world has gone completely and totally insane and it frustrates the hell out of me that I sit here and I have people as I did today, that I could not give bail to because there are not facilities to look after someone who's schizophrenic and is a kleptomaniac, that is he just goes and helps himself to other people's property. Not because he wants to do it, but he's compelled to do it and the only way I can protect - eventually members of the public, and commercial enterprises, is by refusing him bail. So, I've locked up a person today who is mentally unwell, now I'm asked to convict a teacher of assaulting an eight-year-old juvenile delinquent, which is the way he was behaving, and his mother gives me no thought that she was anything other..(not transcribable)..to him as well. His interview was impressive for the fact that he gave every buzz word available, scared, terrified. I can remember going into classrooms where I wasn't very happy about facing the teacher involved, where it made me keep my head down. You needed to keep your head down cause one of those teachers used to chuck the blackboard duster at you, and I'm glad from that sort of teacher's behaviour but to equate what [the first respondent] did in this situation, with it being an assault is a big ask. Technically laying hands on someone is an assault. What do we have here we have a child who has behavioural problems in the classroom, a child who was a constant nuisance and we know he's a constant nuisance cause even his school friends were saying, 'Ooh, you got rid of [the first respondent]', they weren't very happy with him either? He is being an idiot, but potentially a dangerous idiot because the kids are down on their hands and knees picking up block[s] and things from the floor of the classroom and he's standing with a pile of blocks in his hand, at his groin, 15 centimetres away from the face of another student on the ground. Let's assume for a minute that [the first respondent] played the Sergeant Schultz, what if that child on the ground had lost an eye who would have been responsible, guess what, it would have been [the first respondent]. She'd have been the one responsible for what happened because she didn't properly control her classroom. Just last week we have the newspapers reporting that there is thousands - not hundreds, thousands of teachers leaving the New South Wales teaching profession because of violence in the classroom and we're only talking here about primary school, we're not talking about the knives and guns that come in the class in secondary school, we're talking about eight-, nine- and ten-year old's assaulting teachers who are not allowed to do anything in response. Now, either we wake up as a society and start putting the adults back in charge, rather than the juveniles or our society will go the way of the roman empire, it will collapse. If you haven't read Edward Gibbons 'Rise and Fall of the Roman Empire', then I recommend that you try to find a copy in a library somewhere. It's been out of print for about 80 years, but it details - when I was a history student, which is why I'm saying this - … but it details why the roman empire collapsed. And guess what, western society is following it chapter and verse 2000 years later, 1600 probably, but close enough. So, I don't accept that [the first respondent] rang [Ms L] and said, 'I'm picking on your son', and I don't accept that she had any other alternative other than to instinctively act to protect a child in the circumstances in which she did, and I accept that a slap to the shoulder is hardly what one would call inappropriate and unreasonable force. If she'd slapped him on the head she would have been in big trouble, but she didn't. If she'd grabbed him by the wrist or something and pulled him that would have been acceptable as well, she honestly said, 'I acted instinctively', she self-reported and the end result is that the education department has removed her from her role as a teacher. Shame on the education department because they are setting a 'bar' which is impossible to meet and if they end up with no teachers it'll be their own fault. THE MATTER IS DISMISSED, NOT GUILTY. THE AVO IS DISMISSED."

The plaintiff's submissions

The primary basis for the plaintiff's appeal is pursuant s 56(1)(c) of the CAR Act. The appeal is as of right so long as it can be established that it involves a question of law alone. The plaintiff set out the relevant authorities in relation to the determination of this question.
The amended summons, setting out the grounds of appeal pursuant to s 56(1)(c) of the CAR Act, contended that the second respondent erred in law by: 1. Failing to make findings of fact, because it is an aspect of the judicial duty to make and express findings, by reference to the evidence relied on by the prosecutor, as to why the Court is not satisfied beyond reasonable doubt of an accused person's guilt, including why the prosecutor has not negatived a defence raised; and 2. Failing to provide adequate reasons for his decision to dismiss the charges, because the judicial duty to give reasons requires that the basis for the decision be revealed, including as to why the prosecutor has not negatived a defence raised.
In oral submissions the plaintiff refined the question of law alone it contended is involved in this case: "The question of law alone which is involved in this case … is the question of whether where self‑defence is raised, the judge is obliged to make findings expressed in the reasons as to the apprehended threat, or put another way, the perceived circumstances for the purposes of the second limb of s 418 of the Crimes Act."
In support of this contended error of law alone, the plaintiff made submissions including that the second respondent made no reference to the charges or the legal elements of the offences before him, nor whether the plaintiff had established actual bodily harm for the purposes of s 59(1) of the Crimes Act and failed to refer to the photos showing the bruising on the complainant.
The plaintiff further submitted, in relation to the "apparently determinative issue of self-defence of another", the second respondent failed to: 1. Make findings critical to a determination that the prosecution had failed to negative the defence of self-defence of another beyond reasonable doubt; or 2. Failed to provide reasons in that respect.
The plaintiff further contended that whilst the second respondent found that the first respondent had no "other alternative other than to instinctively act to protect a child", in a situation where the evidence was in contest on these points, there were no findings set out as to: 1. What the complainant was actually doing at the time of the alleged offence; 2. Why his conduct was a threat to the other child; and 3. What the respondent's perception was of the circumstances in order that a determination of reasonableness of the response could be made.
The plaintiff submitted that the evidence of the first respondent's perception of the complainant's actions was not clear. In the recorded conversation with police, she referred to the complainant "touching a part of his body" (presumably around his groin) and being "really close to another child". She stated (a number of times) the conduct was "inappropriate" but also did not believe it was sexualised. At no point did the first respondent articulate a perception that the complainant was going to be violent towards another child. Nor did the first respondent articulate any concern similar to the example hypothesised by the second respondent, that the complainant was going to make contact with the other child's eye. Rather, the first respondent stated she "didn't have time to think about motive" and that her conduct was "completely unthought". There was no evidence to indicate that the first respondent perceived the complainant was a danger to other children, or a "juvenile delinquent" in the words of the second respondent.
The plaintiff also pointed to another factual issue not resolved by the second respondent which was important in order to be able to decide whether the striking of the complainant was a "reasonable response" for the purposes of s 418(2). The first respondent's evidence was that she told the complainant to stop and only struck him after he failed to comply with that instruction, whereas the evidence of the complainant was that the first respondent only called out to him during the striking - that is, "[i]n the middle of the smack." The plaintiff submits that the timing of the verbal response from the first respondent was in issue, and required a finding by the second respondent as part of his determination of reasonableness of response.
The plaintiff also points to an absence of factual findings about the evidence of the complainant's mother, which pointed to an issue as to whether the first respondent acted out of a particular frustration with the complainant. Relatedly, the first respondent's conversation with police left open the possibility that the first respondent acted with "reflex … over reason" because she was stressed.
The plaintiff contends that where there is an obligation to address a particular matter in the course of reasons, this will involve a question of law alone: JP v Director of Public Prosecutions (DPP) (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447 at [65] (Beech-Jones J).

The first respondent's submissions

The first respondent noted that at the close of the prosecution case, the prosecutor accepted that defence of another had been raised and that the first limb of s 418 had been met in that "in the mind of [the first respondent] at the time, subjectively she has reacted in a way that she thought was appropriate." Accordingly, "[t]herefore the sole issue in contention between the parties was whether the second limb of s418 had been negatived by the prosecution."
The first respondent contended that the complainant's misbehaviour was believed by her to be that "the complainant had removed his penis and was holding it close to another child's face." The first respondent noted that no issue was taken that the injury sustained by the complainant amounted to actual bodily harm.
The first respondent accepted that the failure of a judicial officer to give adequate reasons can constitute a question of law alone, and also pointed to the relevant authorities, noting that a preliminary question in the proceedings before this court is whether the issue for determination could properly be characterised in that way. It was contended that, whilst the reasons of the second respondent had obvious shortcoming on their face, the grounds of appeal were so closely related to the facts as to involve questions of mixed fact and law.

The law

In Director of Public Prosecutions (NSW) v Swellings [2022] NSWSC 201, the relevant authorities were discussed by N Adams J at [56] including the following: "One of the grounds of appeal in JP concerned an assertion of inadequate reasons on the question of the tender of a document. That ground was dismissed but in doing so Beech-Jones J observed the following at [65]: 'A failure to provide adequate reasons can constitute an error of law (Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [131]). A complaint that a judicial officer did not provide adequate reasons could involve a question of law alone if a question is posed in terms that are unrelated to the circumstances of the particular case, but pose a question as to the content of that obligation of the officer to address a particular matter. A complaint of this kind was upheld in Shepherd v Nestoriadis [2015] NSWSC 348. However, as discussed below in [72], if the complaint concerns a matter of fact then on an appeal restricted to a question of law the obligation to provide reasons is of very limited content (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281-282; Soulemezis).'"
Further, as stated in Shepherd v Nestoriadis [2015] NSWSC 348 at [36]-[40] (Beech-Jones J): "Ground three of the appeal contends that her Honour failed to give proper reasons for finding that the forensic procedure was justified in all the circumstances. The parties did not dispute the proposition that her Honour had a duty to provide reasons for allowing the defendant's application much less the content of that duty. The relevant principles can be briefly stated, although at the outset it needs to be noted that they accommodate the circumstances applicable to magistrates noted earlier and, the fact that in some cases a determination of whether a judicial officer made a particular finding or accepted or rejected a particular submission may be implicit from either the structure of the judgment or its terms when viewed in light of what was truly in contest between the parties. In Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41] Santow JA observed: 'It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.' Similarly in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 Meagher JA said: 'A failure to provide sufficient reasons can, and often does, lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why it lost.' In [Daley v Brown; Pittman v Brown [2014] NSWSC 144] at [96] Bellew J distilled from the judgment of Meagher JA in Beale the proposition that while statements of reasons need not be lengthy or elaborate, an adequate statement must at least refer to all relevant evidence and set out any material findings of fact, any conclusions reached and provide reasons for making the relevant findings of fact and reaching the relevant conclusions as well as providing reasons for applying the law to the facts as found. The observation of Meagher JA in Beale that the judicial officer must expose their reasoning in sufficient detail to enable a losing party to understand why they lost is significant. It must be distinguished from the circumstances in which a party vehemently disagrees with the reason(s) why they lost. Nevertheless, at its core, that requirement is one that obliges the judicial officer to engage with a case presented on behalf of a party so the reason(s) why that case was not successful can be ascertained."
As noted by the first respondent in her submissions, the question of adequacy of reasons must be seen in the context of the environment in which they are given, including whether the reasons are given ex tempore, and/or in a busy Magistrate's Court with a heavy case load: see Acuthan v Coates (1986) 6 NSWLR 472 at 479, 485; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]; Neighbourhood Association DP 295386 v Forgeron [2005] NSWCA 150 at [15]; Colosimo v Director of Public Prosecutions (2005) 64 NSWLR 645; [2005] NSWSC 854 at [36].

Consideration of CAR Act ground

The threshold question to be determined is whether the appeal involves a question of law alone. As stated above, a complaint that a judicial officer did not provide adequate reasons could involve a question of law alone if a question is posed in terms that are unrelated to the circumstances of the particular case but pose a question as to the content of that obligation of the judicial officer to address a particular matter. In my view, the question as set out in the passage extracted at [37] above, and as also expressed in [39] clearly involves a question of law alone. The question focusses on the obligation of the second respondent in this matter to isolate the particular elements of the defence which was to be determined, and to make factual findings in order to come to a proper determination. The question does not require the stating of any particular fact for that task to be properly understood. Further, as also contended by the plaintiff, it is necessary for the magistrate to give reasons for these critical findings.
It was agreed between the parties that the sole issue for consideration by the second respondent at the Local Court was whether the second limb of s 418 had been negatived by the prosecution. In other words, was the conduct of the first respondent a "reasonable response in the circumstances as…she perceive[d] them".
In order for the second respondent to determine this question, it was necessary for the reasons to set out: 1. What were the circumstances as the first respondent perceived them; 2. What was her "response"; and 3. Was her response "reasonable" in those circumstances.
When these questions are isolated in this fashion, and making every due allowance for the atmosphere of a busy Local Court list, it can be seen that the second respondent either failed to make these critical findings or if he did, he did not provide any reasons for them.
For instance, the second respondent concluded that the first respondent had no "other alternative other than to instinctively act to protect a child", but he failed to make a finding as to the circumstances as the first respondent perceived them at the relevant time. In other words, there was no clear finding as to what the first respondent perceived the complainant to be doing at the time of the alleged offence and why the complainant posed a risk of any type to the other child. Without such a finding, the second respondent could not assess what a reasonable response was in the perceived circumstance.
Indeed, this failure to make such a finding was highlighted in the hearing before this Court where there was a clear contest between the parties as to what the evidence showed as to the first respondent's perception of the events. The first respondent contended in this Court that the evidence showed that the first respondent perceived the complainant holding his penis near the face of another child. On the other hand, the plaintiff pointed to evidence indicating that the first respondent perceived the complainant holding a bunch of blocks simulating a penis, pointing it towards another child's face. There was evidence that this was perceived by the first respondent as "inappropriate", but also that it was "not sexualised". There was no evidence that the first respondent perceived the conduct as potentially or actually violent or dangerous, or that the complainant constituted, in the first respondent's eyes, a "juvenile delinquent" or "potentially a dangerous idiot". For example, the first respondent expressed no concern, similar to the example hypothesised by the second respondent, that the complainant was going to make contact with the other child's eye. Rather, the first respondent told the police officer that she "didn't have time to think about motive" and that her conduct was "completely unthought".
There was also a clear unresolved factual dispute as to the timing of what was said to the complainant around the time of the alleged assault. Again, this factual issue was important for the determination of the question of the reasonableness of the first respondent's response.
The first respondent's recollection was that she told the complainant to stop (whatever he was doing) and only struck him after he failed to comply with that instruction. On the other hand, the complainant said that the first respondent only said his name during the striking, that is, "[i]n the middle of the smack." In order to determine the reasonableness of the first respondent's action, it was necessary for the second respondent to make a finding about this factual dispute.
These matters, at the very least, show that the second respondent failed to make relevant findings which were critical for assessing the reasonableness or otherwise of the first respondent's actions. The second respondent's reasons failed to address the elements of the second limb of s 418 and failed to reveal why the plaintiff failed to negative that defence. The decision of the second respondent was attended by error.
As I have found the ground made out under the CAR Act, it is unnecessary to consider the remaining ground of judicial review.
The deficiencies that have been identified in the second respondent's reasoning as to whether the defence under s 418 has been negatived by the prosecution should not be taken to indicate which findings should in fact have been made. This is not a merits review. These matters have been identified in order to be able to properly consider and dispose of this appeal.
Given the manner in which the proceedings were conducted, it is appropriate to remit the matter to the Local Court to be decided by a different magistrate according to law.
At the hearing of the matter, the first respondent applied for indemnification under s 6 of the Suitors' Fund Act 1951 (NSW). The plaintiff did not oppose the application. In my view, this is clearly an appropriate matter in which to grant an indemnity certificate.

Final observations

It should be noted that it is entirely regrettable that the second respondent delivered his reasons using the emotive language and personalised examples that he did. It would appear that this matter resonated with the second respondent in an inappropriately emotional way and in a manner which appeared to cause him to stray from his judicial task of calmly assessing the evidence, making findings, making a judicial decision, and providing reasons in accordance with the dictates of his office and the rule of law. This is not to underestimate the pressures under which our magistrates operate with their heavy caseload and the parade of human difficulties which they face day in and day out. It is, however, important to emphasise that if a judicial officer feels that they are unable to dispassionately fulfil their role in relation to a particular matter or indeed at all, they should take appropriate steps to withdraw from the particular matter, or generally, and seek help and guidance which is readily available to them.

Orders

The Court makes the following orders: 1. Appeal allowed. 2. Pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), the orders of Magistrate Clisdell made on 22 March 2022 at Queanbeyan Local Court dismissing proceedings against the first respondent for the offences of "assault occasioning actual bodily harm" contrary to s 59 of the Crimes Act 1900 (NSW) and "common assault" contrary to s 61 of the Crimes Act 1900 (NSW) (together "the matters") be set aside. 3. The matters be remitted to the Local Court to be heard and determined according to law by a magistrate other than Magistrate Clisdell. 4. The Court grants an indemnity certificate to the first respondent pursuant to s 6 of the Suitors' Fund Act 1951 (NSW).

Endnotes

Pursuant to a request filed on 8 April 2022, Magistrate Clisdell granted an extension of time pursuant to Pt 51B, r 6 of the Supreme Court Rules 1970 (NSW) within which to institute the appeal.
Section 59(1) carries a maximum penalty of 5 years' imprisonment. Another available charge pursuant to s 60E(2) under the heading "Assaults etc at schools" carrying a maximum penalty of 7 years' imprisonment was not laid. It is in the following terms: "(2) A person who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2023

Suitors' Fund Act 1951(NSW)s 6

Crimes Act 1900(NSW)ss 59, 60E, 61, 61AA, 418

At a glance

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