Horan v F [1994] QCA 375

Court of Appeal (Qld)|1994-09-23|Before: Fitzgerald P, McPherson JA, Demack J, Before Fitzgerald P

This matter was not argued on the appeal, as it was irrelevant to the appellant's case. The Stipendiary Magistrate had refused to find the circumstances of aggravation, whatever they might be. However, this does further highlight the unsatisfactory nature of the proceedings.

After preliminary remarks including what he had observed of the witnesses, the Stipendiary Magistrate quoted the relevant passage from each complainant's evidence. It will be necessary to return to these in some detail. For present purposes, it is enough to note that generally the allegation involved touching upon the complainants' buttocks.

The Magistrate then said he had no difficulty with the evidence of the young complainants that assaults did occur. He then dealt with the Appellant's evidence and accepted that he touched his students on a regular basis. This included the habit of patting children on the buttocks to encourage them to move in the desired direction to dismiss them and as part of his rapport with his students.

The Stipendiary Magistrate considered the evidence of two of the complainants, two of the three who had not spoken of touching on the buttocks, and then said that he could not be persuaded that the assaults complained of were assaults of a sexual nature. He indicated he was not willing to allow an amendment of the complaints. He rejected the appellant's solicitor's argument about consent, and rejected the idea that the appellant acted under an honest and reasonable belief that consent was given. He considered s.280 of the Criminal Code did not apply, finding that none of the complaints arose from a discipline situation.

He found the appellant guilty of common assault in nine instances.

The central issue in the appeal is whether a common assault occurs if a teacher touches a child on the buttocks or elsewhere to encourage the child to move in a desired direction.

The only specific reference to which Mr Herbert Q.C. directed the court is in the following passage in Law of Consent by Young p.134:

The heading to this section might easily have been pupils because both the school teacher and the pupil are in a relatively closed system where by reason of their relationship they consent to what goes on as a normal part of the education process. It used to be thought that the school teacher possessed a delegated power from the parent, but more modern thinking suggests that it is the relationship of master and pupil which gives the teacher his authority and by virtue of the existence of the relationship, the pupil impliedly consents to that authority, see Ramsay v. Larsen [1964] HCA 40; (1964) 111 C.L.R. 16 at 28-29.

The relation of the parties will accordingly mean that the teacher will from time to time lay hands on the pupil to guide him or her, for instance, as to how to hold a cricket bat properly or to separate pupils in some squabble. The teacher may also enforce the discipline of the school by physical means."

Ramsay v Larsen (supra) concerned the vicarious liability of the Government of New South Wales for the negligence of a school teacher in its service which resulted in injury to a pupil in his class. The passage referred to is found in the judgment of Kitto J. and reads:

"The doctrine of a delegation of authority by the parent has often been stated as the ground upon which the principle rests that reasonable chastisement of a child by his schoolmaster is justified in law. It necessarily asserts a delegation to the particular person who relies upon the principle as making his action lawful. But the duty to take care of a pupil is not normally the personal duty of the teacher alone. In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a Government or a corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care. The particular teacher, who performs the tasks of care and tuition in a State school therefore performs them as a civil servant of the Crown and not on his own account only. It may be suggested, with the support of such cases as Hansen v. Cole (1890) 9 N.Z.L.R. 272 and Murdock v. Richards (1954) 1 D.L.R. 766, at p.769, that a schoolmaster's power of reasonable chastisement exists, at least under a system of compulsory education, not by virtue of a delegation by the parent at all, but by virtue of the nature of the relationship of schoolmaster and pupil and the necessity inherent in that relationship of maintaining order in and about the school. But even so, there is no ground for concluding that in the work of teaching and taking care of the pupil in a State school a teacher is acting otherwise than in a capacity which, if the Government were a subject, would be that of a servant acting for his master."

This statement does not clearly say that the pupil impliedly consents to the authority of the teacher.

The question of correction is specifically covered by s.280 of the Criminal Code, which reads:

280. It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, towards a child, pupil, or apprentice, under the person's care such force as is reasonable under the circumstances."

The Stipendiary Magistrate ruled that he was not concerned with a discipline situation. It should be noted that, while the heading to s.280 refers to "discipline", the word in the section is "correction". Prior to the amendment of s.14 of the Acts Interpretation Act in 1991, the heading of a section was not part of an Act, and that remains the law in respect of legislation passed prior to 30 June 1991. Certainly, "correction" is often used to connote punishment, but its meaning is not limited to that. As the Shorter Oxford English Dictionary notes, it is derived from the Latin corrigere "to lead straight, direct." Thus, the first meaning given by that Dictionary is "the action of correcting or setting right." Is that a fair description of what the Stipendiary Magistrate has found that the appellant was doing?

No doubt, in 1899, physical punishment was a common method of correction in schools and in homes. However, the word "correction" cannot be regarded as a kind of legal term of art that must be construed only in terms of physical punishment. Within a school setting, there are many circumstances in which a teacher will properly apply force to a student for the purpose of correcting that student. The example, which Mr Justice Young gave in the passage quoted from his book, of holding the cricket bat, is but one of many that could be given.

Indeed, the concept of discipline within the home and at school is no longer seen as something that is dependent upon physical chastisement. Consequently, neither the heading, if that is significant, nor the words of s. 280 require that that section be given a restricted meaning so that an assault upon a student by a teacher is only justified under s.280 if it is made in the course of chastisement for a breach of school rules. The orderly movement of children within the school buildings is as much a matter where correction may be needed as is the observing of school rules about cheating. Thus, the application of force to the buttocks of a student or upon some other part of the body of a student to encourage movement in a desired direction is justified by s.280, if it is reasonable in the circumstances.

Section 245 of the Criminal Code defines "assault" in very broad terms and s.246 provides that an assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law. Section 280 is one of the sections in the Code which justify assaults and, so upon the construction suggested it would serve to render an assault, committed in the circumstances found by the Stipendiary Magistrate, lawful.

In the following discussion, the complaints are referred to in the same sequence that the Stipendiary Magistrate used in his reasons for judgment. This is not the same sequence in which the complaints are typed out on pp.47, 48 and 49 of the appeal book. In respect of the first complaint the Stipendiary Magistrate said, p.388:

"The evidence of A., on the face of it, is of a reaching under the skirt of complainant. It could well be described as an assault of a sexual nature. However, an examination of her words seemed to indicate an accident which occurred in his touching habit. The words: "and he put it back down with his hand", indicating a readjustment of the child's skirt and accompanied by his expressed regret."

This incident had occurred when the child went up to the appellant's desk in the class room. He was in the habit of putting his arm around the student when this happened. On the findings made on this occasion he "accidentally" reached under the skirt. There was no consideration of s.23 of the Criminal Code which excuses an event which occurs by accident. If the findings mean that when the child came up to the desk the appellant reached out, without looking, and upon realising he had his hand under the skirt, he apologised and took his hand away, then no unlawful assault occurred. A. did not suggest he touched any part of her body only her skirt.

The first complaint, on the findings, should have been dismissed.

The second and third complaints are ones of touching on the buttocks in the manner previously described. The second occurred on a sports day when a substantial number of children were being organised into events and the third when the student was leaving a classroom. Both of these can be characterised as setting the student in the right direction and so are within the meaning of "correction". Only gentle touching was involved and so both are justified by s.280. These complaints should be dismissed.

The fourth complaint is also within the category of touching buttocks while the student was moving around the class room. Here the findings about the degree of force used are not clear. The particular complainant said she was squeezed on the bottom, but another student in the class described it as an openhanded gentle pushing motion. The rejection of the sexual nature of the assaults should carry with it the rejection of the squeezing of the buttocks. If that is so, this is also an assault justified by s.280. The fifth complaint was discussed more fully by the Stipendiary Magistrate:

"The second complaint of M., where defendant took her by the shoulders, saying 'Hey M.', to use complainant's words: 'Both his hands on my shoulders and he and goes, 'hey M.' and then rubs and does down.' On hearing and observing complainant, I find I view this interchange as more likely to be a friendly greeting on the part of the defendant. Perhaps a rub to the shoulder and then falling away of his hands when he released them."

This incident was said to have occurred on the top of the stairs into the class room. As it has been found by the Magistrate, it is in the nature of a friendly greeting which involved touching on the shoulders.

The transcript of the video recording of this complaint includes:

"GHOh so it was before school? Okay and what did he do to you exactly?

GHYou said he put his hands on your chest is that right?

G.H. is one of the investigating police officers and his third question seems to have clarified the earlier answer in a way the Stipendiary Magistrate did not accept. In crossexamination, M. agreed that the officer suggested the word "chest". The passage which the Magistrate quoted in the passage above was given in crossexamination. M. had not spoken of touching on the shoulders in the videorecorded interview. She agreed, in crossexamination, that the appellant would touch students on the shoulder, either to congratulate them on something they had done or to direct them to go in a particular direction. The finding is of a friendly greeting.

In respect of this conviction, it cannot be said that the evidence was satisfactory. The evidence quoted from the transcript of the video recording is of a very vague touching which assumed serious significance through the words of the interviewing officer. There was no earlier complaint of the touching of the shoulders. The Stipendiary Magistrate, in dismissing the allegation that this assault was of a sexual nature, disbelieved the allegation in the transcript of the video recording. He placed an innocent interpretation on the gesture, calling it a friendly greeting, and then found the appellant: had committed an unlawful assault.

While there is no basis in the quoted passage from Ramsay v. Larsen (supra) to support the idea that every child required by law to attend school impliedly consents to the exercise of the teacher's authority, there is every reason to accept the concept that a child attending school tacitly consents to receiving from a teacher tactile expressions of encouragement. The traditional pat on the shoulder for a significant achievement falls within this concept. To deny this concept would be to insist that schools become sterile, unemotional and devoid of normal expressions of friendly human interaction.

The description of this touching as a friendly greeting would mean that the touching does not amount to an unlawful assault, such greeting being tacitly consented to. The finding that the assault is unlawful cannot stand.

The sixth and the ninth complaints involve touching on the buttocks together with words to encourage the prompt ascent of stairs. They are justified by s.280 and do not constitute unlawful assaults.

The seventh and eighth complaints present a serious problem. In his recitation of the evidence the Stipendiary Magistrate said:

"J. complained of a touching by defendant. She demonstrated touching of the inside of the right thigh. She has also asserted that this was a squeezing action. There were originally two complaints made by J.. However, as a consequence of her admissions that she thought this had happened but once, one of these complaints was dismissed on completion of the prosecution case. The complaint seems to relate to a time when J. was at the desk of the teacher defendant."

The ruling given at the end of the prosecution case was in these terms(p.239):

"BENCH: Yes. At this stage I have to determine not whether the defendant should be convicted but whether he could lawfully be convicted of an offence of assault. Now, I do uphold the argument of Mr Mellick as regards the two complaints of J. on the evidence that it stands that the Court could never be satisfied to the requisite standard that two complaints are proven itself, and I do propose that one of those complaints will be dismissed, and no prima facie case can be found there."

Thus, the ruling is that the complainant was in error in saying that she had been assaulted on two separate occasions when the appellant squeezed the inside of her right thigh. Having rejected the allegation that all of the assaults were of a sexual nature, it is not at all clear where that leaves this particular complainant's evidence. The pattern of the judgment involved the summary of each complaint, the discussion of the appellant's habit, the ruling about the circumstances of aggravation and the discussion of three complaints that did not so clearly fall in the category of "correction". This particular complaint was not discussed, although it most certainly cannot be categorised as correction.

It seems implicit in the Magistrate's finding that he rejected the evidence that the appellant had squeezed the inside of this complainant's thigh, and consequently there is no evidence on which the conviction can be sustained.

The tenth complaint is described by the Stipendiary Magistrate in these terms:

"The final complainant is a K.. Her complaint differs from the others in that she made complaint on the day of the alleged offence. K. complained that defendant touched her, it seems, while she was sitting near the computer. That is, at the opposite end of the classroom to the blackboard. In her video interview she states: "in between my legs here and up the side of my bottom and top of my leg".

There is further complaint by K. that she was at the time, lying on a couch known as the sick bed, in the verandah outside the classrooms. She stated that defendant came up to her and placed his hand on her thigh. She gave a demonstration in the Courtroom on the surface of the witness box, of the tips of two fingers and them moving approximately two inches. With this demonstration, it is easy to obtain a mindseye picture of the action complained of.

It is this complaint that the prosecution seeks to rely on in today's proceedings. This is the only instance complained of which defendant states he has recollection of. He states that it was to feel the temperature of the child, as he thought from her appearance that she appeared pale and cold."

The prosecution relied only on the alleged incident on the sick bed. There had been an earlier conviction in respect of charges arising from this complainant's evidence. The conviction was set aside on the basis that the complainant had given a very different account to a teacher which had not been known by the defence at the summary hearing. So it was that the prosecution relied only on the incident on the sick bed.

"The complaint of K. involves an allegation of defendant touching her in the area of the groin, though this is not the act relied on by the prosecution. I have viewed and reviewed the video interview with the child. It shows complainant at times distressed. Her demonstration of what occurred reveals something like a semi flathanded touch in the area of her lower abdomen, apparently on the outside of her skirt. There is a touch to her buttock as she was leaving defendant.

It is apparent that K. did not relish her interchanges with her teacher. She professes her dislike for school. Defendant describes her as an underachiever and the impression which came through to me from the video interview is that she finds her own shortcomings in her school work upsetting. Against this background, it is not hard to understand she found defendant's touching habit distressing and no doubt his hand did reach the area complained of. However, I would hesitate to accept that this occurred intentionally or as a result of a sinister motive."

From these findings, the appellant touched the complainant's lower abdomen on the outside of her skirt with his semiflat hand. That cannot be regarded as correction. It certainly was not an effective way of checking her temperature. It is not easy to understand what the last sentence in the above passage means.

According to the findings, the touching was gentle and for a short duration. The finding seems to be that there was no intention to offend and no sexual overtones. Given the appellant's expressed concern about the complainant's well being, the finding supports the interpretation of this application of force as a gesture intended to encourage a child who was in the sick room. This would then fall within the restricted group of cases to which a child may tacitly consent within the school environment to which reference has already been made. The finding of common assault should not stand.

Since writing the above, I have had the opportunity of reading the draft reasons prepared by the President and McPherson J.A.. It is appropriate that I elaborate on my reasons for asserting that a child attending school tacitly consents to receiving from a teacher tactile expressions of encouragement.

First, I used the word "tacit", meaning "unspoken", rather than "implied", in order to emphasise that this "consent" may be withdrawn by a word or, indeed, a gesture. In other words, I do not suggest that children consent to receiving prolonged or effusive expressions of encouragement. The child must be allowed to respond negatively if that is that child's wish. What is involved in this case are instances of brief, gentle touching without any element of a sexual nature.

Secondly, the kind of "jostling" of which Goff L.J. (as he then was) spoke in Collins v. Wilcock (1984) 1 W.L.R. 1172, at p.1177, will generally fall within the protection of s.23 of the Criminal Code as an event which occurs by accident. Section 24 of the Criminal Code may also apply, in other circumstances, to jostling. In my opinion, there is no need to give "consent" an enlarged meaning to deal with the matters His Lordship raised.

Thirdly, I accept the criticism Lord Goff made of the concept of implied consent being extracted from children, particularly, primary school children. They are required by law to be at school. To imply from their presence at school that they "consent to what goes on as part of a normal part of the education process" invites the comment made by Wilde C.J. in Reg v. Case (1850) 1 Den 580; 169 E.R. 381, at p.582 (382):

"Children who go to the dentist make no resistance; but they are not consenting parties".

The examples given by Mr Justice Young in Law of Consent, which have been quoted, generally fall within the concept of "correction" which I have referred to. In other words, s.280 of the Criminal Code justifies the use by a school master of reasonable force by way of correction. I should add that, in my opinion, "school master" should bear a broad meaning to cover any person employed by the school authorities to maintain the school as an educational community. It should not be interpreted so that a "teacher" may lawfully guide a child's hand in teaching writing or drawing, but a "teacher's aide" may not.

Fourthly, while the Criminal Code must be construed according to its terms, so that it is not legitimate to look at the antecedent law, the Criminal Code is not "an island, entire of itself". It is "a piece of the continent, part of the main", that is, part of the general law. Thus when the Criminal Code uses the word "unlawful", that does not confine the issue within the limits of the Criminal Code itself. For example, the Vagrants, Gaming and Other Offences Act 1931, is to be read and construed as an amendment of the Criminal Code, (s. 52(1)), and that Act authorises assaults involved in the search of a suspect (s. 24) and in the taking of fingerprints (s. 43(2)). The Drugs Misuse Act 1986, by s.17, authorises assaults committed in the search for dangerous drugs.

In a very different context, the Transplantation and Anatomy Act, 1979, permits a number of medical and surgical procedures not covered by s.282 of the Criminal Code because they are not for the benefit of the donor on whom they are performed, but for the benefit of another person. In my opinion, it is inconceivable that before that latter Act was passed an attendant at the Blood Bank, who wounded a blood donor by piercing the donor's true skin with a needle, was guilty of unlawful wounding. Indeed, in my opinion, there was no unlawful wounding because informed consent has been given to an established medical procedure. In such circumstances no civil action lay, in the days before the AIDS virus caused concern, and, even more so, no criminal offence was committed. In other words, informed consent made the wounding lawful. Similarly, the grievous bodily harm done in removing a healthy kidney for transplanting was lawful because of the informed consent of the donor.

Again in a different context, the authority given to an occupier of land under s.68 of the Fire Service Act 1990 may justify the setting fire to crops and plants in the course of controlling a fire. This would otherwise be an offence under s.463 of the Criminal Code. In other words, in my opinion, s.68 of the Fire Service Act 1990, if its terms are complied with, justifies the damage caused by back burning.

Fifthly, it is in this broad area of the statutory justification of acts which are otherwise unlawful that I would place the concept of the school child's tacit consent to receiving tactile expressions of encouragement. Section 24 of the Education Act 1964 speaks of progressive primary education which has regard to the age, ability and aptitude of the child concerned. Section 12 of the Education (General Provisions) Act 1989 speaks of a program of instruction that has regard to the age, ability, aptitude and development of the child concerned and which takes account and promotes continuity of the student's learning experiences. While neither Act defines the role of a teacher in the provision of this education or instruction, ordinary commonsense requires that children be encouraged in the process of learning. That is fundamental to the learning process. Tactile expressions of encouragement are not essential but they are a common form of human expression. So, in my opinion, it is consistent with the aims of the statutory scheme for primary education to allow as justification for the appropriate, nonsexual touching of a student by a teacher, the student's tacit consent to receiving encouragement.

The appeal should be allowed. The findings that the appellant was guilty of common assault are set aside and in respect of each charge enter judgment of acquittal.

Vagrants, Gaming and Other Offences Act 1931

Fire Service Act 1990

Education (General Provisions) Act 1989

In England also, any touching of a person, however slight, may constitute an offence, known as battery, not assault, although the nomenclature is unimportant. Again, the touching is generally lawful if the person touched has consented to the touching: In re F (Mental Patient: Sterilisation) [1991] UKHL 1; (1990) 2 A.C. 1, 72. There, Lord Goff of Chieveley, after referring to the "principle ... that everybody is protected not only against physical injury but against any form of physical molestation", said:

In Mellifont v. Attorney-General (Queensland) [1991] HCA 53; (1991) 173 CLR 289, five members of the High Court in a joint judgment said at p.309 "... that it is not legitimate to look to the antecedent common law for the purpose of interpreting the Code unless it appears that the relevant provision in the Code is ambiguous". Their Honours cited as authority Stuart v. R. [1974] HCA 54; (1974) 134 CLR 426 at p.437 per Gibbs J., with whom Mason J., and it seems Menzies J., agreed. There, after referring to the joint judgment of Dixon and Evatt JJ. in Brennan v. R. [1936] HCA 24; (1936) 55 CLR 253 at p.263, which in turn referred back to Bank of England v. Vagliano Brothers (1891) AC 107, at pp.144, 145, Gibbs J. said that the passage which he quoted from Brennan "... does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground ...". The decision of the Privy Council referred to by his Honour, Robinson v. Canadian Pacific Railways (1892) AC 481 at p.487, which as he says had been cited in Queensland in R. v. Scarth (1945) St.R. Qd. 38 at p.44, provides clear support for his statements. See also R. v. Knutsen (1963) Qd.R. 157, per Stanley J. at pp.170-171, cited with approval in R. v. Kusu (1981) Qd.R. 136 at p.138 by W.B. Campbell J., with whom Matthews J. agreed.

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)