The respondent's outline of the facts is as follows;

"On the 25th of February 1996 the complainant Bradley Martin Cramer was five years of age and lived with the applicant and his family on premises which were part of the Commercial Hotel at Northam. The applicant was Bradley Cramer's step-father and the licensee of the hotel.

Sometime (sic) during the morning of the 25th of February 1996 Bradley Cramer used a pocket knife to damage a bean-bag. As a result of damaging the bean-bag the 'beans' of the bag were spilt from the bag and caused a mess. The mess came to the attention of the applicant who then confronted Bradley. The applicant smacked Bradley and told him to go to another part of the hotel and that he was going to get a 'belting of a life time'.

The applicant then took Bradley to a room opposite a kitchen in the vicinity of the hotel and repeatedly struck Bradley with a ruler. The applicant struck Bradley at least ten times and as possibly as many as fifteen times with the ruler(stick). Bradley's step brother Reginald John Cramer was outside the room at the time that the applicant was striking Bradley and heard loud slapping noises and Bradley screaming. Reginald John Cramer later saw what the applicant had done to Bradley and eventually attended the Northam Police Station and made a complaint.

Later that afternoon Police Officers attended the hotel and spoke to the applicant. The Police informed the applicant that they had received a complaint that the applicant had given Bradley 'a flogging' to which the applicant replied 'yes I bloody well did. I hit him with a stick'.

The Police then conveyed Bradley and his mother to the Northam District Hospital. At about 3.45pm Dr Cohn John Smyth, a General Practitioner examined Bradley and noted a number of bruises and welts to the boys back, buttocks and legs. The injuries were then photographed by the Police.

Later that day the Police returned to the hotel and pursuant to a search warrant seized the ruler that the applicant had used in striking Bradley.

The Crown case alleged that the applicant had used more force than was reasonable for the purposes of correction and was therefore unlawful. As a result of the unlawful forced used Bradley suffered bodily harm - bruises and welts. According to Dr Smyth the bruises and welts would have interfered with Bradley's health and comfort but the boy did not appear to be worried by the time he saw him."

It is not in dispute that, on 25 February 1996, the applicant did chastise Bradley by striking him several times (the evidence suggests between 10 and 15 times) with a wooden slat on his buttocks, arm and legs. He said that he had done so in order to punish Bradley for his conduct in cutting a bean-bag with his pen-knife, spilling the polystyrene beans on to the floor. The defence case was, in effect, that this was a reasonable parental chastisement and, therefore, not unlawful. It is apparent that the jury did not consider that the force used by the applicant was reasonable under the circumstances.

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

In R v Terry [1955] VicLawRp 22; [1955] VLR 114, Sholl J pointed out that there are strict limits to the right of a parent to inflict reasonable and moderate corporal punishment on his or her child for the purpose of correcting the child in wrong behaviour. Such limits are: (i) the punishment must be moderate and reasonable; (ii) it must have a proper relation to the age, physique and mentality of the child; (iii) it must be carried out with a reasonable means or instrument. That case is referred to in the decision of Kennedy J in Higgs v Booth, unreported; SCt of WA; Library No 6420; 29 August 1986, in which case his Honour pointed out that the provisions of s257 of the Criminal Code reflect the attitudes of the 19th century and should be applied having regard to the standards currently prevailing in the community. His Honour also pointed out that the force applied is to be used only by way of correction and not of retribution.

The applicant appeared in person on the appeal. In the particulars supporting the application, which I propose to treat as the grounds of appeal the applicant says:

"NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

1. In consideration of all the circumstances of the trial the decision of the jury was unsafe and unsatisfactory.

Reference M. Vs The Queen [1994] HCA 63; (1994) 181 CLR 487,

[1994] HCA 63; (1994) 126 ALR 325,

[1994] HCA 63; (1994) 69 ALJR 83 FC 94/058

2. Justice Sadlier (sic) erred in directing the jury that "Bodily Harm" had occurred to Bradley. (Refer trial transcript, bottom page 60, and top page 61). This was the very issue that went to the heart of the matter and the comments by Justice Sadlier (sic), in effect amounted to a direction that the defendant was guilty.

3. Justice Sadlier (sic) erred in directing the jury that the photographs of Bradley were an actual record of the force used in punishing him. The expert evidence was in fact contrary to this proposition. (Refer trial transcript, top page 64)

4. Justice Sadlier (sic) exercised a legal discretion to allow the use of the photographs and the medical evidence. Given all the circumstances surrounding the collection of this evidence this decision was unfair and contributed substantially to an unsafe and unsatisfactory decision.(Reference Plenty Vs Dillon [1991] HCA 5; (1991) 171 CLR 635 FC 91/004)

5. Justice Sadliers (sic) response to the jury's question concerning the Doctor's opinion on how soon the bruises had cleared up was wrong.(Refer Trial transcript, middle page 22)

6. There is a minimum standard of injury required to sustain a charge of Assault Occasioning Actual Bodily Harm. It is our submission that that minimum standard has not been met. (Reference (sic)

7. The Defence Council was negligent in preparing his clients (sic) defence and despite the wishes of the defendant failed to introduce evidence which was available to him and which would certainly have had a significant bearing on the case.

8. As Christians, the defendant and his wife have a right to raise their children in accordance with their culture, tradition and beliefs. This is not an unqualified right, but one tempered by virtues of Christian Doctrine. Those qualifications were not exceeded. (Reference, The Holy Bible)"

The issue at the trial was as to whether the applicant's conduct was such as to be protected by the provisions of s257 of the Criminal Code.

As Bradley's father, in whose care Bradley was at the material time, the applicant was a person within the terms of s257 of the Criminal Code and the only issues, therefore, in relation to the appeal against his conviction, are concerned with the questions whether the force used by the applicant was used by way of correction and was reasonable in the circumstances.

It is clear from the verdict that the jury found against the applicant on one or other or both of these issues.

Particular 1: Was the verdict unsafe and unsatisfactory?

This ground is a blanket proposition, to be considered in the light of the more specific grounds appearing later in the particulars furnished by the applicant. It would be convenient, therefore, to deal with this ground at the conclusion of these reasons, as summarising the effect of the other material relied upon.

Particulars 2 and 6: Was bodily harm caused to Bradley?

The applicant contended that the learned trial Judge, in effect, directed the jury that the applicant was guilty. His Honour's direction, in relevant part, was as follows:

"Now, I come to the elements that the prosecution must prove in the present case. The charge of course is of an unlawful assault thereby doing bodily harm. The first thing that the prosecution must prove is that Bradley suffered bodily harm. Really harm here means injury and in turn injury refers to a disorder, a physical disorder of the body. There is no dispute really that bruises, welts, that sort of condition, amounts to harm, amounts to an injury.

It must be, according to the definition of bodily harm, a bodily injury which interferes with health or comfort. In the present case you had some evidence from the doctor that the bruises may nothave interfered with Bradley's health but no doubt that they interfered with his comfort, so it would be sufficient if you are satisfied that the injury, the bruises, the welts, interfered with Bradley's comfort, and I don't think there is a lot of dispute that that in fact is what occurred. So that is the first element in the case."

That direction did not, in terms, state that the applicant was guilty. In saying that "there is no dispute really that bruises, welts, that sort of condition, amounts to harm, amounts to an injury", his Honour was, in my opinion, correctly assessing the position adopted by the applicant's counsel and was leaving the factual issue to the jury.

In cross-examining Dr Smyth, the applicant's counsel at trial commenced by asking:

"Dr Smyth, when you look at the welts they would be uncomfortable, would they not, if you received a hit with a piece of wood causing a welt?"

The applicant argued that the evidence did not disclose that the beating Bradley received caused bodily harm to him. "Bodily harm" is defined in s1 of the Criminal Code as any bodily injury which interferes with health or comfort. The word "injury" is defined in the Macquarie Dictionary as harm of any kind done or sustained.

With respect, the direction given by his Honour to the jury, which I have set out above, was, in my opinion, both fair and correct.

It was, I consider, open to the jury to find that a welt caused by a hit with a wooden instrument was an injury. It is apparent from their verdict that the members of the jury were satisfied that Bradley did receive injuries as the result of the applicant's hitting him with the wooden slat.

In any event, his Honour directed the jury, in the traditional way, that they were the sole judges of the facts, which were to be determined by thejury on the evidence, and that any comments by his Honour on the facts were not binding upon them.

The question for our determination in this regard is whether it was open to the jury, on the evidence, to find that the applicant had done bodily harm to Bradley by inflicting an injury upon him which interfered with his comfort. I have no doubt that the answer to that question must be in the affirmative. It was a matter for the determination of the jury and, on the evidence as a whole, it was clearly open to the jury to find themselves to be satisfied beyond a reasonable doubt that this element had been proved.

Particulars 3 and 4: The photographic evidence.

Shortly after Bradley was beaten by the applicant, he was put to bed and fell asleep. The applicant submitted that the fact that he had fallen asleep tends to show that the beating he received was not severe. However, that proposition was unsupported by any evidence and is not necessarily correct. In itself, I do not regard this feature as particularly significant, one way or the other.

The police officers arrived following the complaint made to them by the applicant's elder son and, despite the protests of the applicant, insisted on awakening Bradley and taking him to a doctor for examination and for photographs to be taken indicating the weals on the child's body. These photographs were admitted into evidence and the applicant says that they should not have been allowed to go before the jury as they were more prejudicial than probative. The doctor who examined Bradley did not suggest that he needed any medical treatment and in fact described him as being "in good spirits". The photographs do show a number of reddish marks on Bradley's skin, consistent with the impact of the wooden instrument used at the time. That is a thin wooden slat, some 80 centimetres in length,three centimetres in width and approximately half a centimetre in thickness and of light weight. It seems not to be an instrument likely to cause serious harm to health, albeit quite sufficient to cause bodily injury interfering with comfort.

The marks on Bradley appeared on his left forearm, back, buttocks, upper left thigh, left calf and right thigh. They appear to show that Bradley was struck at least 10 times.

While the applicant submitted that the photographs were misleading, they did, in my opinion, disclose the extent of the beating that Bradley received at the applicant's hands.

In my opinion, the photographs were correctly allowed to go to the jury - they were relevant to material issues and I am not persuaded that the learned trial Judge erred in admitting them. During argument before us, the applicant said that he did not smack Bradley 10 times and that the photographs are repetitive - in the sense, no doubt, that they show the same marks from different angles. However, albeit conscious of that fact, it is apparent that at least 10 different marks can be seen in those photographs. The applicant said that he was personally absolutely horrified afterwards when his wife raised the matter with him that Bradley had red marks on him.

The applicant complained that the photographs had been taken in circumstances in which the police had acted illegally in waking Bradley and taking him away to be examined and photographed.

Sadleir DCJ ruled on the voir dire that the police had no right to take Bradley as they did and that they had acted illegally in so doing and in remaining in the applicant's premises after being asked to leave.

However that may be, the result was that the photographs did not thereby necessarily became inadmissible; it was a matter of discretion.

His Honour gave careful consideration to all relevant aspects of the matter and excluded certain evidence of the police witnesses.

In the exercise of his Honour's discretion, he allowed the photographs to be tendered and, in my opinion, his Honour was right in so doing.

Nor, in my judgment, did the admission of the photographs give rise to any unfairness to the applicant. The photographs showed relevant matters and illustrated the direct evidence of the doctor who examined Bradley.

It has not been shown that the decision of the learned trial Judge to admit the photographs amounted to a miscarriage of his Honour's discretion.

Particular 5: The response to the jury's question

"(1) We are unsure on the time-frame between the incident and the time that the boy was seen the second time by the doctor; incident on 25 February, initial exam 1 March, second exam 6 days ?, prosecutor and doctor both said 3 days between visits.

"(2) The doctor's evidence said initially 'force was excessive', then after examination said 'force may not have been as severe as the welts had almost gone away after 3 days'. May we have these areas clarified or read back to us?"

In the absence of the jury, his Honour discussed these questions with counsel.

"I think the short answer to that is that Bradley was examined on 25 February by the doctor and again on 1 March. It's really 5 days later because there were 29 days in February."

Counsel for the applicant at the trial agreed that the period involved was five days.

In relation to the second question, his Honour asked:

"Well, are counsel confident if I read that question and answer, three paragraphs up on page 21, the two paragraphs on page 22 to which reference has just been made, and the two paragraphs on page 23? Does that cover all that the question asks? If counsel want to read the evidence of the doctor more thoroughly I will give you time."

Mr Cannon replied: "No, that's all I can see as well ... "

Upon the return of the jury, his Honour read out the first question and said:

"Now, answering that question, Bradley of course was examined by Dr Smyth on 25 February, and he was examined by the doctor on 1 March. So that is 5 days later because there were 29 days in February 1996."

His Honour then dealt with the second question as follows:

"I will read the relevant extracts for you, ladies and gentlemen, but just before I do so I don't think the doctor said that the force used was excessive. Of course that is not a question for him to decide, it is a matter for you to decide as part of the issue whether or not the crown has proved that the force used was unreasonable in the circumstances. These are some of the questions and answers in the doctor's evidence when questioned by Mr Balodis:

'Can you say what degree of force would have been necessary to cause those injuries?---I would have thought from the appearance that it was a reasonable amount of force - '

there he is using the word 'reasonable' I think as meaning a fair amount of force, not reasonable in the sense that you have to consider but what he was saying, 'I would have thought from the appearance that it was a reasonable amount of force.' Later on, still being questioned by Mr Balodis, he was asked:

'Would that mean that some people would stay bruised for longer and others for shorter periods of time?---That's correct, but 3 days was fairly short.

Although you have noted that not all of the bruising had gone by that stage?---No, there were still a couple of areas but not very many.'

It appears there the error crept in at 3 days. Later on under cross-examination by Mr Cannon the question was:

'When you saw him some days later as far as you were concerned they seemed to have cleared up?---The majority had.

Would you agree with me that they are very superficial?---Well, that is the only conclusion that I could come to, the fact they disappeared so quickly.'

Of course the majority may have disappeared in 3 days but here was the doctor talking about 5 days and what he saw and that is the evidence that we have got. Is there anything else from counsel that I should read?

It is, I think, clear that his Honour's answers to the questions posed were a correct reflection of the evidence which had been given and that no objection thereto was taken by counsel appearing for the applicant at the trial.

Particular 7: Was the applicant's counsel guilty of negligence?

While the applicant contended that he had asked his counsel to adduce certain evidence and to adopt certain courses in cross-examination, there is really no material before us upon which we could conclude that the applicant's counsel was negligent in the conduct of the trial. Mr Cannon, a very experienced counsel, was dealing with a case in which there was no dispute about the facts that the applicant had beaten his five-year-old son with a wooden slat, raising welts on many parts of his body. There was some dispute as to the number of blows struck by the applicant - the Crown contended for at least 10, the photographs indicate at least that number and the applicant, in evidence, said that he had struck six blows, perhaps morethan six. In these circumstances, it is difficult to see what other defences might be available to the applicant than that which was raised, namely, a lawful parental chastisement. It was a question for the jury to determine whether the facts supported that defence.

As a general rule, an accused is bound by the way in which his counsel has conducted the trial on his behalf and it is not a ground for setting aside a conviction that decisions made by counsel involved errors of judgment or even negligence: R v Birks (1990) 19 NSWLR 677 at 685; Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145; Schuster v The Queen, unreported, CCA SCt of WA, Library No 970180.

Insofar as the applicant has complained that his counsel did not adequately inform him of his right to challenge prospective jurors, the following was said at the outset of the trial, in the presence and hearing of the applicant:

"THE CLERK OF ARRAIGNS: ... Robert John Cramer, these good men and women whom you now hear called are the jurors who are to decide between our Sovereign Lady the Queen and you upon your trial. If therefore you wish to challenge them or any of them, you must do so as they come to be sworn and before they are sworn, and you shall be heard.

MR CANNON: If your Honour so pleases, I appear for the accused person. I have explained to him that he retains at all times his right of personal challenge and I will exercise challenges generally."

There is no evidence that the applicant did not understand his right of challenge or wished to do so in the case of any juror but was unable to exercise it for any reason.

I am in any case not persuaded that the applicant has established negligence on the part of his counsel which should result in this Court interfering with the verdict.

Particular 8: The right of the applicant to raise his child as a Christian

I do not think that anyone would quarrel with the proposition contained in this particular.

The applicant submitted that, in beating Bradley, he had no criminal intent and no intention to harm the child, and said that:

"I intend (sic: intended) to smack him and I intend to smack him quite seriously. I mean, it wasn't a one-off situation and, I mean, I felt it was appropriate.

Parenting is a very difficult job, but I agree with you and, I mean, quite clearly that is the difficulty that the jury had as well and the difficulty that anybody would have. I mean, I'm ashamed to look at them, and that's a fact, but from the outset understand this: the whole issue is that they are not a true reflection of the position"

I should like to say that I do not doubt that the applicant was acting without the intention of inflicting serious harm on Bradley; I accept that he loves his son and that he is doing his best to bring him up as a good Christian. Indeed, the applicant cited a number of passages from the Bible in reference to the right or obligation of a father to discipline his child. Of course, those passages do not directly bear upon the issues before the court below or before us and the case at first instance was concerned with the question whether the jury was satisfied beyond a reasonable doubt that the applicant had assaulted Bradley so as to cause him bodily harm and was not absolved by the terms of s257 of the Criminal Code. However, I do not think that the passages cited by the applicant are inconsistent in any way with the provisions of that section. They certainly do not suggest that it is appropriate for a father to useexcessive force in disciplining his child. The Criminal Code recognises the right of a father to use, by way of correction, such force as is reasonable in the circumstances. It follows that, while I agree with the proposition put in this particular, I do not consider that it is of assistance to the applicant in the factual circumstances of the present case.

Particular 1: Was the verdict unsafe or unsatisfactory?

I revert to the first particular, which in fact comprises the formal ground of appeal. During the trial, the points which were made before us by the applicant were canvassed before the jury.

The applicant referred to certain discrepancies in the evidence given by his elder son, Reg in his sworn statement, in the evidence he gave at the preliminary hearing and at the trial. He also informed us that Reg had cause to be aggrieved with the applicant because the latter had made a complaint to the drug squad in relation to Reg's involvement with stolen cannabis, albeit the applicant had first secured an agreement from the drug squad that Reg would not be prosecuted.

However, as Steytler J pointed out during argument on this appeal, it is not for this Court to substitute its view of the facts for that formed by the jury. The determination of the facts was, of course, a matter for the jury. The question in this Court must be, whether it was open to the jury, on the evidence as a whole, to be satisfied beyond a reasonable doubt of the guilt of the applicant. In the end, I think the issue may be expressed in this way: Was it open for the jury to find that, in striking his five-year-old son with a wooden slat some ten times, so as to raise red marks on Bradley's body, the applicant had used excessive force, with the result that he unlawfully assaulted and caused bodily harm to Bradley. I am satisfied that such a finding was one which the jury, properly instructed, could make.

For these reasons, while I would grant the application for leave to appeal against conviction, I would dismiss the appeal.

The maximum penalty prescribed for the offence of contravening s317(1) of the Criminal Code, following a trial on indictment, is imprisonment for 5 years. The summary conviction penalty is imprisonment for 2 years or a fine of $2,000.00.

The offence was, in my judgment, at the lower end of the scale of offences contrary to s317(1) of the Criminal Code. There are few of such cases which come before the courts, probably for obvious reasons, and little guidance is to be obtained from the authorities as to sentencing. The principles upon which an appellate court must approach an appeal against a discretionary decision are well settled. It is not enough that an appellate court might have taken a different view and imposed a different sentence. It is necessary, in order to succeed, that it be shown that the court at first instance has failed properly to exercise its discretion: Weng Keong Chan (1989) 38 A Crim R 337 at 342 per Malcolm CJ; Australian Coal and Shale Employers' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627, per Kitto J; House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5, per Dixon, Evatt and McTiernan JJ.

The penalty imposed, namely a fine of $1,000 was within the range of a sound sentencing discretion and I would not be disposed to interfere with it.

Accordingly, I would refuse the application for leave to appeal against the sentence.

I have had the advantage of reading the reasons for decision of White J. I agree with them and with his Honour's conclusions. I wish to add only a few brief comments in respect of particular 4 of the grounds of appeal.

As White J has pointed out Sadleir DCJ ruled, on the voir dire, that the police had no right to take Bradley as they did and that they acted illegally in so doing. The applicant's submission was, in effect, that in that circumstance the court should have excluded the photographs which were only able to be taken as a consequence of the unlawful removal of the child.

Even if it be assumed that the photographs were to some extent misleading the fact remains that they were relevant and useful if only for the purpose of showing upon how many occasions Bradley had been struck.

In R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334-5 Barwick CJ, with whom the other members of the court were in agreement, said:

"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

That statement has since been applied on a number of occasions (see, for example, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 72).

There is, in this State, no statutory provision which would have the effect of forbidding the use of the photographic evidence by virtue of any unlawful circumstances in which it was obtained. It accordingly follows that, even if it be assumed that that evidence was unlawfully obtained, it remained open to the learned trial Judge to admit it as a matter of discretion. It was, as I have said, useful and relevant evidence. The nature of any illegality attending the taking of the photographs was not such as to affect their cogency. Nor was there any relevant unfairness to the appellant arising from the use of the photographs. I am not persuaded that there is, in these circumstances, any basis for interfering with the discretion of the learned trial Judge.