The defendant is charged with one count of common assault under s 61 of the Crimes Act 1900 (NSW). It is alleged that on 15 October 2021 he assaulted his son 'PS' who I shall refer to hereafter as the alleged victim. The defendant is also charged with contravening an apprehended violence order which was in place at the time, which had a standard condition that he must not assault the person in need of protection or any person that person lives with.
The hearings for the matter occurred on 16 February 2023 and 20 March 2023. As this is a criminal trial, the onus is on the prosecution to prove both charges beyond reasonable doubt.
It is not in dispute that the defendant assaulted the alleged victim by striking him with a belt; he admitted to the conduct when he testified in court. It is not in dispute that the prosecution evidence in the case established beyond reasonable doubt that a battery occurred.
Therefore, the elements or ingredients of common assault have been made out by the prosecution evidence in the case.
[2]
THE DEFENCE OF LAWFUL CORRECTION
In this case the defence of lawful correction has been raised. The defence is found in s 61AA of the Crimes Act 1900 which provides as follows:
61AA Defence of lawful correction
(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if -
(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
(2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied -
(a) to any part of the head or neck of the child, or
(b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.
(3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable.
(4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction).
(5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment.
According to the decision of DPP v FD [2017] NSWSC 679 at [12] the defendant has an onus of proof to establish the defence on the balance of probabilities. He must establish that the physical force applied to the child was lawful correction. In that case, the Court held a magistrate erred by failing to require the defendant to prove on the balance of probabilities that the defence of lawful correction had been made out.
In this case, the Court raised with the parties whether the decision of DPP v FD was inconsistent with the House of Lords decision of Woolmington v DPP [1935] AC 462 where Viscount Sankey said, with the support of the other Law Lords:
"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception." (emphasis added)
Later in the judgment His Honour, Viscount Sankey said:
"No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
The High Court confirmed the principle as part of the common law of Australia in King v The Queen (2003) 215 CLR 150. Gummow, Callinan and Heydon JJ at [52] expressed the principle in the following terms:
"…unless statutory provision to the contrary be made, the onus lies upon the Crown throughout, to negative defences sufficiently raised".
Lawful correction is described as a defence both at common law and in s 61AA Crimes Act 1900. The language and terms of s 61AA do not evince an express intention to alter the common law. The terms of the section do not state that there is an onus on the accused to prove the defence nor does it make reference to the balance of probabilities.
In that respect, the text of s 61AA is to be distinguished from statutory defences referred to by the High Court in Braysich v The Queen (2011) 243 CLR 434 at [2], [32]-[37] such as under s 998(6) of the Corporations Law (given statutory force in that case by the Western Australia by the Corporations (Western Australia) Act 1990 (WA))The High Court confirmed that the accused bore the evidential burden and was required to establish the defence on the balance of probabilities. Another statutory example is the partial defence of substantial impairment to murder in s 23A of the Crimes Act 1900. Section 23A(4) places an onus of proof on the accused. It provides:
23A Substantial impairment because of mental health impairment or cognitive impairment
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
The standard of proof in relation to the partial defence under s 23A is the balance of probabilities: see R v Ayoub [1984] 2 NSWLR 511 and more recently R v Jawid [2022] NSWSC 788 at [91]-[92].
In the decision of DPP v FD [2017] NSWSC 679 the Court placed reliance on s 141 of the Evidence Act 1995 (NSW) as governing the standard of proof applicable to a defence of lawful correction. However, s 141 has not been interpreted as having the effect of generally ousting the common law as it relates to defences, including the principle in Woolmington v DPP [1935] AC 462.
The learned authors of Criminal Practice and Procedure, the Honourable Justices Howie QC and Johnson SC, have expressed doubt about the correctness of the decision of DPP v FD [2017]. The learned authors state in their commentary:
"No reference was made in the judgment to s 417A of the Crimes Act or to statements of authority that generally it is for the prosecution to negative a defence unless the statute makes clear that it is otherwise."
[3]
THE APPROACH TO THE LAW
Given the controversy concerning the decision of DPP v FD [2017], the Court will treat s 61AA Crimes Act 1900 as a defence to the charge of assault whereby the defendant is required to raise the defence to an evidentiary standard. If it is properly raised, then the question for adjudication is whether the prosecution has negatived the defence of lawful correction beyond reasonable doubt. However, the Court is of course bound by the decision of DPP v FD [2017]. Therefore, it must be asked whether, on the basis of the evidence, the defendant has proved the defence of lawful correction on the balance of probabilities.
[4]
FACTS NOT IN DISPUTE
There are certain background facts in this case which are not in dispute. At the time of the incident the defendant and his former wife 'JS' had four children: three girls and one boy. The oldest girl, 'RM', was aged 15. 'MS', who gave evidence in the proceedings, was aged 13. 'DS', whose statement was tendered in evidence, was aged 9. The alleged victim was a boy aged seven.
At the time of the incident there were Family Law proceedings being conducted and a 50:50 shared parenting arrangement in place between 'MS' and the defendant in relation to the three youngest children. On the day of the incident the three children were at the defendant's residence.
It is not in dispute that the alleged victim bent back at least one finger of DS. As a result of this, the defendant decided that the alleged victim needed to be punished. He took the alleged victim into his study, obtained a belt from a drawer, and hit the alleged victim once with the belt. It is in dispute whether the older sister, MS, witnessed the strike. However, it is not in dispute that she immediately called her mother, JS, and told her that the defendant had belted the alleged victim.
It is also not in dispute that a conversation then occurred between the defendant and JS. The content of the conversation is in dispute. It was JS's version that MS was crying, and she stayed on the phone and tried to calm her down. She also said she that heard the alleged victim in the background whimpering. JS said she told the defendant that it was not okay that he had used a belt on the alleged victim. It was her version that the defendant then said, "You can't tell me how I parent my children when they're in my care." It was the defendant's version that he told JS that she had done it plenty of times and he would not be dictated to as to how to discipline his children in his own home.
It is not in dispute that JS picked up the alleged victim from the defendant's house the following day.
Finally, there is an agreed fact in the case concerning the alleged victim. Exhibit 3 was a tendency notice filed by the defendant. It was an agreed fact between the parties that the alleged victim had a tendency to behave, or attempt to behave, violently and aggressively towards others by punching, kicking, biting and inflicting bodily harm in the particular incidents specified in the notice. This evidence was also relied on to establish that the alleged victim was a challenge to parent. It was also agreed between the parties that after the incident the alleged victim had been diagnosed with autism spectrum disorder or least that was something that emerged from the evidence. It was, on the defendant's version, a recent diagnosis.
[5]
THE PROSECUTION CASE
The prosecution case relies on the evidence of Constable James McGregor who took video statements from the three children out of court. The prosecution also relies on the evidence of the mother JS and the alleged victim's sister MS. DS's statement was tendered as Exhibit 2.
The alleged victim did give a video statement to police and was called in the proceedings as a witness. However, he made clear, after three attempts, that he did not want to give evidence. As a result, there was a ruling that his out of court statement was not admissible. The reasons for the ruling can be found in the transcript of 20 March 2023. As a consequence of the ruling things purportedly said out of court by the alleged victim to his mother after the incident were hearsay. The prosecution proceeded on the remaining evidence.
[6]
JS
JS gave evidence that she got a call from MS on the day of the incident. The latter told her that the defendant had given the alleged victim 'the belt'. What was said in the telephone conversation between the defendant and JS (referred to above) was a matter in contest. But JS gave evidence that she called the Department of Communities and Justice after the telephone call on the same day. She later attended the police station on 1 November, nearly two weeks later.
She testified that she picked up the alleged victim the day after the incident. He would not talk about anything on the drive home. At home, he went on the computer. Whilst the alleged victim was playing computer games, she asked whether she could check his bottom. She testified that there was a mark and a small bruise. She asked the alleged victim what happened. Again, the answers given by the alleged victim in the context of the previous ruling were hearsay, but she described the bruise as the "top right of his bottom, maybe one-and-a-half centimetres wide, it was light purple, it was 5 to 6 centimetres down from the top of the pants line".
[7]
DS
It was not in dispute that DS was not an eyewitness to the incident. Her out of court statement was admitted as exhibit 2. She gave an account of what happened before the incident. In her video statement she told police that she was playing with the alleged victim, and he bent her finger back and then she told her dad and her dad banned him (the alleged victim) into his room. She described the alleged victim's action as bending her pointy finger back. The alleged victim was taken into the defendant's room and the alleged victim came out crying. DS was asked where MS was at the time, and she answered that MS came inside and saw what the defendant was doing.
[8]
MS
MS gave a video statement out of court that the defendant smacked the alleged victim with the belt in the study. She was outside putting clothes on the washing-line, and she came inside and she heard the alleged victim screaming. She opened the door and she saw the defendant smack the alleged victim with the belt. She said she got angry and frustrated. She asked her sister, DS, what happened, and she said that the alleged victim had bent her fingers back. She called her mum.
Her version was that the belt hit him on his back, she saw it go down past his back. She said she saw the defendant hit the alleged victim once. She was asked how DS said her fingers were pulled back. She held her first and second fingers with her right hand and pulled the fingers back towards her wrist. In the video recording she told the police that after the alleged victim was belted, he was screaming.
In court she testified that she was in the doorway of the defendant's room, about 5 metres away. She described the belt. She said it was a little brown belt which was kept in a drawer by the defendant. She described the blow with the belt in the witness box. She used her right hand and cocked it at a right angle and swung it across the front of her body to demonstrate how she said she saw the defendant use the belt. The motion went from left to right at a 90-degree angle. She was asked whether she saw which part of the belt had made contact with the alleged victim. She said the middle and the bottom side. She said the opposite end of the buckle made contact. She said she heard when the belt hit the alleged victim. She maintained that the alleged victim was crying and screaming.
Under cross-examination it was put to her that she did not see the alleged victim get hit by the belt. She simply answered, "I disagree".
[9]
The Defendant's Case
The defendant gave evidence in court. He testified that at some time in the day DS let out what he described as a horrible, blood-curdling scream. He left his bedroom and found DS. She told him that the alleged victim had bent her fingers back for no reason. He asked the alleged victim whether he had done that, and that the latter agreed.
He testified that the alleged victim had hurt other people before. He said he made a decision at that point that the alleged victim needed to be punished. He brought the alleged victim into the room and closed the door because, in his words, he "does not want to glorify punishment" and it was not "the business of the children". He then obtained a belt from the cupboard and gave the alleged victim one strike of the belt as punishment. He then sat the alleged victim on his knee and told him that the punishment had finished. He told the alleged victim that he loved him and told him that "you don't hit your girls and you don't hit your sister". The alleged victim was upset. The defendant testified he cuddled him, and the alleged victim cuddled him back. MS then opened the door and asked him whether he had just hit the alleged victim, to which he replied, "That's none of your business".
He testified that as a result of the hit there was no injury or mark that he saw on the alleged victim. He was absolutely certain of that. He testified that he checked later that night. He said he had used the application of force in a similar nature on the alleged victim and his other children on previous occasions.
Under cross-examination the defendant was questioned on what made him decide to reach for the belt. He answered that he felt that if he did not do something he would have been negligent in his parental responsibility towards the alleged victim. As he put it, "The belt is one of the things I've used in the past to success".
The defendant was asked whether there were other available options. He answered that he could have given the alleged victim an open palm smack, counselled him, given him no desert for a few days, taken a toy off him or disallowed him from playing computer games. However, he testified that based on the severity of what the alleged victim did he felt the need to send a strong message. He testified that he had used it previously. As he put it, it was a legal and effective punishment for the alleged victim. The defendant was asked if he was absolutely certain no mark was left. He maintained that there was no mark left. He was asked why he would delay checking on the alleged victim and wait until later to determine whether there was a mark. His answer was "Because that's what I normally do".
In re-examination the defendant was asked why he held the view that it was a legal and effective punishment. He answered, "The fact that I've done it previously, not on [the alleged victim but on the other children] and that police have been called and come out and interviewed me". The defendant then referred to an incident in 2017 where he claimed that the police were called to his house after he had given two of his children the belt and JS's parents had complained to police. His evidence was that nothing came of the complaint and, according to the defendant, a local area commander in fact said "I appreciate your parenting and the way you're doing things" and "if it wasn't for people like you we would have more customers".
[10]
Credibility Findings - JS
JS was asked why she did not take a photograph of the bruise that she said she saw on the alleged victim. It was her evidence the alleged victim would not let her do that. There was also a proposition put to her that she should have sought medical attention. It was also asked why she did not ring the police immediately, to which she responded by saying that she had called DCJ [Department of Communities and Justice] and that she was trying to get advice as what to do. I found this answer to be reasonable and explicable and rebutted a suggestion that she was not concerned about the wellbeing of the alleged victim.
In this case, the two-week delay in the complaint has to be viewed in the context of the unchallenged evidence that JS contacted DCJ on the day of the incident. The fact that she permitted the children to stay with the defendant after the incident does not necessarily undermine her credibility. As she testified, there was a court ordered arrangement for parenting.
JS's denials that she was not simply trying to gain an advantage in family law proceedings were convincing. Her evidence in relation to the bruise was very particular and it was consistent with parts of MS's evidence.
So far as the issue of not taking a photograph, she had said that the alleged victim would not let her do that. As far as seeking medical attention is concerned, it is perhaps an overstatement of the injury to suggest that she should have sought medical attention.
[11]
Credibility Findings - MS
MS gave clear and forthright evidence. She maintained that she was an eyewitness to the incident and emphatically denied that she was simply 'not there' when the incident happened. Her evidence and her in court out of court video statement were consistent. I found her to be a witness of credit.
[12]
Credibility Findings - Defendant
The credibility assessment of the defendant had to take into account his evidence that he had used a belt on the alleged victim on previous occasions. The answers that he gave in evidence seemed to present scenarios where he had not used the belt, and ones where he had used it on his children but also on the alleged victim. But in terms of the other parts of his answers and his credibility, the Court will focus on the defendants' own view of his conduct against the defence of lawful correction.
[13]
Closing Submissions - Prosecution
In closing submissions, the prosecution submitted that the defence was not available because the physical force used by the defendant was not reasonable. The prosecution relies on evidence of the alleged victim that when he returned from staying with the defendant a bruise was observed by his mother. The location of the bruise was consistent with the evidence of the elder sister, MS. It was submitted that the fact that the bruise was inflicted was evidence of harm for more than a short period as that expression is used in s 61AA(2)(b) Crimes Act 1900
So far as the characteristics of the child are concerned under that section, the prosecutor submitted that the fact that the alleged victim had been diagnosed with ASD does not mean that he should be corrected by the use of a belt. The prosecutor submitted that people and childcare organisations that care for the alleged victim do not belt him when he misbehaves. The submission was that the physical force used by the defendant was unreasonable.
[14]
Closing Submissions - Defence
On behalf of the defence, Mr Centraco that the defendant should be found not guilty on the basis that the defence of lawful correction has been established. It was submitted that the physical force was reasonable in the circumstances. It was submitted that the harm caused by the use of the belt did not last for a long period, it was only one hit, and it was done to teach the alleged victim a lesson not to physically hurt his sister. It was only once to the backside. It was further submitted that the alleged victim was seven at the time and he was described as a young man, old enough to hurt others. It was further submitted that the alleged victim was an autistic child who was a challenge to parent. Reference was made to incidents referred to in the tendency notice concerning other occasions when the alleged victim behaved violently and aggressively towards others.
Mr Centraco also submitted that the Court should not accept that, as a result of the physical force applied by the defendant, the alleged victim had a bruise. Mr Centraco asked the Court to completely reject the evidence of the alleged victim's mother, DS, as a fabrication. In support of that proposition, it was submitted that DS's version should not be accepted because she did not take a photo of the injury or seek any medical treatment for the child and no other person saw the bruise. It was also submitted that notwithstanding the call by the alleged victim's elder sister (MS), DS nevertheless allowed the alleged victim to continue to stay with the defendant and she picked the alleged victim up the next day. It was submitted that if the alleged victim's mother, DS, was worried about the children, including the alleged victim, she would have picked them up immediately.
It was submitted that JS had a motive to lie because there were Family Court proceedings on foot. It was also submitted that the victim's elder sister, MS, did not witness the belting. This line of questioning also suggested that she, MS, fabricated her evidence by saying she had witnessed the incident.
[15]
DETERMINATION
Section 61AA of the Crimes Act 1900 has application because these are proceedings brought against a person arising out of the application of physical force to a child. In this case, the physical force was applied by a parent. It was not in dispute that the physical force applied was the use of a belt.
The resolution of the issues in this case requires the Court to make findings of fact.
I reject the defendant's version that he closed the door to administer the physical force. I found MS's evidence on this point clear and convincing. Her evidence was that she was an eyewitness to the incident. I found that she was consistent in her evidence. Her answers in cross-examination to questions asserting that she did not see what happened were convincing. She told the Court that the defendant used a 90-degree swiping motion and that it was a forceful blow, on any view, to the back area of the alleged victim. It was enough to cause the alleged victim to cry and scream.
There was another aspect to the defendant's evidence which is significantly undermined by other evidence in the case. In his account he said he closed the door and gave the alleged victim one strike of the belt and then sat the alleged victim on his knee and cuddled him and proceeded to talk to him about how what he did was wrong. That is, there was a discussion, and the alleged victim cuddled the defendant, and the defendant cuddled the alleged victim back and then the alleged victim's elder sister, MS, opened the door.
The defendant's version makes minimal reference to the impact on the alleged victim of the strike with the belt. The other evidence in the case from MS is that it had a significant impact. The alleged victim was crying and screaming. The reaction of the alleged victim was such that MS felt the need to call her mother to tell her what had happened.
I find that the defendant's account significantly understates the impact of the strike with the belt on the alleged victim. I do not accept that the alleged victim was merely upset, and that the defendant quickly consoled him, and the alleged victim cuddled him back. I accept MS's evidence so far as the impact on the alleged victim is concerned. The alleged victim's mothers evidence JS,was that the alleged victim was quiet in the car after he was picked up and that he would not talk about the incident after she had picked him up. The alleged victim did not want to speak about it later when he was playing on his computer. She could not take a photograph because the alleged victim resisted that course.
The defendant's version was that as a result of the hit there was no injury or mark at all on the alleged victim. He said he was certain because he checked the alleged victim later that night. He also testified that he had used that kind of force on the alleged victim and his other children before without leaving any injury or mark.
I do not accept as a general proposition that when a grown man of some strength strikes a child in the manner as described by MS to the backside, with a belt, there would be no mark at all. I reject the defendant's evidence in relation to whether the strike left a mark at all. I accept the evidence that there was a mark being a faint purple bruise on the alleged victim's body after the blow. I accept the evidence of JS that she saw a faint bruise the next day and I reject the suggestion that she simply fabricated her evidence. Clearly, she was bound to check the child after she picked him up, especially after MS had called her, upset, about the fact that the alleged victim had been belted. The faint bruise was in the same area where MS said the alleged victim was struck, even though she did not know the precise contact point. However, she said the defendant used the opposite end to the buckle to strike the alleged victim. JS said that the shape of the bruise looked like a corner. There is a degree of consistency between those two versions.
The defendant's account that he was sure at the time of the strike that there was no mark at all, even a red mark, is totally implausible. The fact that he admitted later that night that he had checked whether there was a mark on the alleged victim directly contradicts his initial assessment of the strike. There would be no need to check the alleged victim's body for a mark. I draw an inference that the defendant was concerned as to whether he had left a mark on the alleged victim's body as a result of the strike. It does not assist his case that when he testified, he stated that this is what he "normally does".
I turn now to the question of whether the physical force applied by the defendant was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged behaviour or other relevant circumstances.
The age of the child is seven years. He is very young. Minds may differ as to whether a belt should ever be used on children as a form of physical force. The Court is not required to adjudicate upon that issue generally. However, if as a general proposition it could be said that a belt can be used as physical force for lawful correction, it is clear that the younger the child is the more unreasonable it would be to use a belt as a form of physical force. Here the child is only seven. This circumstance is clearly against the defendant.
I find in this case that it was not reasonable for the defendant to use a belt on this seven-year-old child given what he had done and notwithstanding the evidence in relation to his tendency. So far as the maturity or other circumstances of the child I find as follows. The child is very immature, he cannot be characterised as mature. It was not in dispute he has been diagnosed with autistic spectrum disorder. This is widely known as being a developmental disability. He has difficulty with social communication and interaction. This was apparent from his conduct in court of persistently refusing to give evidence. It was not in dispute that he can be a challenge to parent, however, as a general proposition it does not follow that he should be subjected to a different and more severe form of physical force, such as the use of the belt.
The tendency evidence in this case does not greatly inform the issue because the Court must take into account the incident and the actual misbehaviour that was being corrected.
Other relevant characteristics of the child include his height. He is still small, judging from how he sat on the knee of the support person in the remote room during his evidence. He appeared to be strong in the way he struggled with the support person, but he is much smaller than the defendant.
The nature of the alleged misbehaviour, as referred to in s 61AA Crimes Act 1900 is the bending back of his sister's finger or fingers. As DS described it in her interview, "He bent my finger back and, and I told Dad". She demonstrated to police how it occurred. It was described by Senior Constable Weir in an interview, "to your right hand he bent your pointy finger back". MS later described it as being two of her fingers being bent back.
In his evidence the defendant testified that he told the alleged victim, after he had belted him, not to hit his sister. He said this twice in his evidence and then he corrected himself. So, his evidence overstated what had occurred, including the evidence of DS herself about what had occurred.
I find in this case the misbehaviour is not serious in the context of the child's relationship with his sister. She did not have any lasting injuries. Her finger, according to the evidence, was not injured in anything but a transient way. The defendant's evidence that he heard a blood-curdling scream by DS has an air of exaggeration. DS's version was that after the incident she told her dad. She does not say she screamed, nor did MS testify that she heard her sister scream or a blood-curdling scream.
[16]
CONCLUSION
I find the defendant has raised the defence to the evidentiary standard referred to earlier. On the basis of my conclusions concerning the matters referred to in s 61AA(1) Crimes Act 1900 I find that the prosecution have negatived the defence of lawful correction beyond reasonable doubt. I find to the criminal standard of proof that the application of the physical force of a belt was not reasonable having regard to the age, health, maturity or other relevant characteristics of the child and the nature of the alleged misbehaviour. There were other available options to the defendant in this case.
In addition to this finding in relation to s 61AA(1) Crimes Act 1900, I also find beyond reasonable doubt that the force applied by the defendant likely caused harm to the child that lasted for more than a short period. In this case, the Court finds to the criminal standard of proof that the defendant bruised the child with the belt.
The decision of DPP v FD requires a court to determine whether the defendant has established the defence of lawful correction on the balance of probabilities. Applying the Court's conclusions concerning the statutory indicia in s 61AA(1) Crimes Act 1900 leads to an inevitable conclusion that the defendant has failed to do so.
For these reasons, I find the defendant guilty of the offence of common assault and consequently guilty of the offence of contravening an apprehended domestic violence order.
[17]
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Decision last updated: 18 November 2024