District Court New South Wales Medium Neutral Citation: R v WM [2020] NSWDC 714 Hearing dates: 13/10/2020 Date of orders: 18/11/2020 Decision date: 18 November 2020 Jurisdiction: Criminal Before: H. L. Syme DCJ Decision: Appeal Dismissed Catchwords: Parental Correction; Assault; Self Defence Legislation Cited: 61AA of the Crimes Act Cases Cited: Mannix [2020] NSWDC 34 AG v DPP [2015] NSWCA 218 Category: Principal judgment Parties: WM The Crown Representation: WM (In Person) R. Sharma (ODPP) File Number(s): 2019/00238390 Publication restriction: Yes. Non publication order on any material that may identify the Complainant Decision under appeal Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 14/02/2020 Before: Magistrate Goodwin File Number(s): 2019/00238390 Judgment 1. By Court attendance Notice dated 6th August 2019, the appellant was charged that between 8:00 PM and 8:30 PM on 31 July 2018 he assaulted NM (a pseudonym), a 6 year old child, the biological son of the appellant. The matter proceeded for hearing in the Local Court at Manly on 15 October 2019 and 14 February 2020. At the conclusion of the hearing he was found guilty and the Magistrate set out reasons on that day. It is from that decision that the appellant appeals. 2. The Crown appeal bundle contained the following material: * Notice of Appeal; * CAN Master Cover sheet; * Local Court Transcripts; * Paragraphs 1 - 9 of Statement of Alexander Hjorth NSW Police; * Exhibits of Local Court Proceedings (exhibits 1 - 8) * Material Marked for Identification (MFI A - E). 1. The appellant has provided the court with the following documents without opposition from the Crown: * Police body worn camera footage; * Written submissions (undated and received by this court on 3 July 2020); * Written submissions dated 11 August 2020; and * New South Wales Police photograph of leg of NM headed Point of Impact of kick, left leg above knee. * Photocopy of Law Degree and enrollment documents from various institutions. 1. The appellant has also provided me with a decision of His Honour Judge Hatzistergos DCJ in an appeal in the matter of Mannix [2020] NSWDC 34. In that decision His Honour referred to the requirements for an appeal to be successful. I respectfully agree with his interpretation of what is required. He said: "Specifically, in AG v Director of Public Prosecutions (NSW), Basten JA stated that the Appellant is required to demonstrate some legal, factual or discretionary error for the appeal to succeed. The term "error", however, has no precise meaning and requires the appellate Judge to be satisfied that the judgment under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to the specific cases. Simpson J, following an extensive review of authorities, stated that in her view it was not necessary, before the appellate power of the District Court is exercised, that there be error of law, fact or discretion shown". 2. In the context of this appeal it is difficult to discern what the complaint of the appellant really is. The difficulty included my difficulty in understanding his English communication. The appellant appeared to speak and write English in a satisfactory fashion, and told the court that he had a law degree from an Australian university, a copy of which he gave to the court. He said that he had passed his law degree in the English language, however I had difficulty in understanding the sense or sequence of some of his written submissions, and also had difficulty in understanding him speaking in the English language. For that reason I requested that an interpreter in the Mandarin language (which the appellant said was the language he spoke) be made available. The Interpreter, who is a highly qualified accredited interpreter, and a regular interpreter for proceedings in this court, reported that he similarly had difficulty in understanding the strong accent and dialect of the appellant. He occasionally sought and obtained clarification. Throughout the hearing the appellant insisted on using both Chinese and English languages, some times in the same sentence. The matter proceeded in that way and the communication was satisfactory. 3. The difficulty I had in making sense of the appellant's written legal submissions had nothing to do with language difficulties. He repeated or read out those submissions as his oral submissions. Some of those submissions simply did not make legal sense. For example, he insisted that the appeal be heard before a jury notwithstanding it had been explained to him on several occasions that such a hearing was not possible under the Act. His written submissions seemed to acknowledge that a jury "trial" on appeal was not a possibility, however, this did not deter him from continuing to make reference to it and quoting from cases referencing the need for a jury in murder trials. 4. A further difficulty was that his evidence and his submissions often appeared to be in conflict. He either failed to understand or refused to acknowledge the difference between factual issues and legal submissions. For example he said to this court he could not have possibly assaulted the complainant because there simply was not room for him physically to do so. He then insisted that he was justified in kicking the complainant because it was a lawful parental correction. He relied heavily on s 61 AA Crimes Act and gave lengthy oral and written submissions as to the requirement for the court to consider it. When the court attempted to point out the inherent conflict in those submissions the appellant either did not hear or not understand the difficulty. 5. This difficulty was also encountered in the Local Court proceedings. It is difficult to know if his sworn evidence clearly addressed what he wanted to say actually occurred. His oral evidence confused what actually happened, according to him and what defenses technically might exist if evidence existed to support these defenses. 6. I will therefore deal with the appeal on the basis of a review of the evidence before the court and as best as I can deal with the "legal submissions" from the Appellant. Evidence Before the Local Court 1. The charge was laid after the police were called to the home by the mother of the complainant, Ms IP. When police arrived they spoke to her and then spoke to the complainant who was six years of age. That portion of events was recorded by way of body worn video and although the prosecution did not rely on that evidence the appellant insisted that it be part of the Local Court proceedings and appeal. It was therefore admitted. Similarly the appellant insisted that I watch it. 2. Constable Hjorth told the court he was provided with version of what occurred by the child's mother and that he interviewed and observed the child. As the child was speaking to police he told them that his father had kicked him in the leg above the knee. He pointed out where. He told police that it did not hurt any more, but Constable Hjorth told the court that the child had told him that it hurt when he was kicked. 3. After speaking with the complainant and his mother the Constable cautioned the appellant and after his consent was given, the appellant participated in a recorded interview. In the interview The appellant gave a great deal of information about the issues of the day but he denied kicking the child. On the subject of this interview I do not propose to give myself a Lies and Consciousness of Guilt direction, notwithstanding that in his evidence in court he said that he did or might have kicked the child. I find the appellant lied in the interview. In his evidence in Court, the Appellant seemed to concede that he had kicked the child and it could be that he told the police officer a lie in order to avoid the current charge. However on balance I am of the view that in fairness to the Appellant, as this was not raised in the Local Court, nor raised in such a way as to enable him to refute that inference in the current proceedings, I will not draw that conclusion. 4. In the Local Court proceedings the child's mother, IP, gave evidence. She said that on 31 July 2019 she and the Appellant were having an argument in the presence of the child. The child intervened saying something like "don't talk to mummy like that". At that time that she was on the other side of a counter or bar in the kitchen area, and when she walked around it she saw the appellant kick the child in the leg. Later in her evidence she told the court that after police had left, the child had told her that he had kicked his father first, but she did not see that. 5. IP drew a rough diagram of the layout of the room (Exhibit 1). The Appellant insisted that the scale of the diagram was not accurate on the basis of the plans he tendered to the Local Court (Exhibit 7). He is probably correct, however, the purpose of the witness's diagram was not to put the event in a scaled picture, but to indicate the placements of the 3 people in the room. Where they were standing in relation to each other is apparently not in dispute. 6. IP told court as a result of the kick, she observed redness on the child's upper leg near the knee area. She took a photograph, which was tendered as evidence. The quality is not such that I can make out a mark, but her evidence that one existed was not challenged. She told the Appellant that he should apologise to the child and when he refused she told him she was going to call the police, which she did. 7. It was suggested to her in cross-examination that she was making it up; or that she could not see WM from where she was standing or the child was in the way. She denied and all of these propositions and said that she had a clear view of what was occurring. She said that the child was about a metre away from her and was standing sideways, and that the Appellant was facing NM a little over a metre away from him. She denied that she told the child to lie to police and said she told him to tell the police the truth. 8. It was suggested to her that she had in the past agreed with the appellant that he was allowed to constrain or kick the child. She denied that she had ever agreed that kicking the child would be permitted. 9. There was obviously some background of disagreement or tension between the Appellant and IP. The Magistrate took into account the prior bad feeling between the two when assessing the evidence. The Magistrate heard a great deal of evidence about prior difficulties. 10. As noted above, the appellant insisted the video interview with the child was played before the Local Court and again he insisted become evidence in the appeal. I take into account that the child was not cross-examined on his video statement however its contents directly support the evidence of his mother. The area of contact pointed out by the child is consistent with with other evidence. The statement was taken only hours after the event, and in the circumstances ought be afforded some weight as corroborative evidence. 11. The Appellant gave evidence in the Local Court. The Magistrate observed that his evidence was cloaked in legal submissions and that made it difficult for her to understand what his evidence was. However she did her best. He told the court of a background of dispute between himself and the child's mother. He told the court many things which he had not put in his cross-examination of IP, but the Magistrate made due allowance for that and entertained that evidence none the less. 12. He told court that when he was arguing with the child's mother, in the kitchen area the child went to kick him. He said he felt immediate fear and "used his leg to change his direction". He said that he felt fear the because in the past (allegedly 20 days prior) the mother had held the child's foot and kicked him in the face with it, causing bleeding. Therefore his action of responding to the child's kick was self-defence. This proposition was not put to the child's mother. 13. He also said that he did not kick the child, and if he did it was accidental as he was turning to protect himself. He said that the child kicked him first and he could not run away and so he just turned around. 14. Therefore the appellant suggests first that he did not kick the child, consistent with his police interview. He maintained this because he says there was no room in the area to do this. He repeated this submission in his appeal with reference to the plan he tendered in the local Court (Exhibit 7). The evidence of lack of room is not supported by the child's mother, and it was not put to her that there was no room for the kick to occur. The police officer was not asked this either. The photographs (Exhibit 8) and the plan prepared by the appellant do not support this proposition. The area was clearly big enough for three of them to stand in because that is the evidence of everyone. If there was room to stand and room for the child to kick the appellant there was room for the appellant to kick the child back. The Appellant's evidence that he could not physically kick the child is therefore rejected. 15. The next submissions from the appellant is that he was on the one hand lawfully correcting the child, and on the other hand that the kick was accidental. The Appellant Does not appear to understand the inherent contradiction in these two submissions. On the totality of the evidence before the court is impossible to accept that the kicking was accidental. There is insufficient cogent evidence to understand that this was meant by the Appellant in this part of his evidence. 16. His next submission was that kick was in self-defence. This submission assumes that the kick occurred and was not accidental. This was not the appellant's evidence, however I will deal with the submission. The child was six years of age at the time. Observing the evidence in the body worn police video it is clear that the child was of normal size for six-year-old. The appellant's submission was that that he felt fear because of an event between himself and the child's mother 20 days beforehand. This proposition was not put to Ms IP in cross examination, so there is nothing on which the appellant's submission can be tested. The prosecutor in the Local Court conceded that there existed an application for an AVO in the system for which the appellant was the PINOP, however that fact is far from proof of the complaint. This event, if it occurred is not sufficiently proximate to the events and the circumstances of the 31st July 2019 to assist the court in accepting that the appellant felt fear from the child on that day. In addition, there is no evidence that on the 31st of July, Ms IP was holding the child, and using his foot as a weapon, which seems to be the earlier allegation. Therefore the proposition that the appellant was feeling such fear of the child on the 31st July that he had to defend himself by kicking the child must be rejected. The Magistrate seems to think that he was making it up and so do I. There is nothing to support the proposition that the Appellant felt fear at being kicked, if he was, by a 6 year old. 17. The court must assess as to whether the appellant was in a position where his fear might have been reasonable, but I do not accept his evidence (or submission) that he was fearful is true, or could possibly be so. He did not raise this with the police officer. It smacks of an invented argument, tailored to fit the appellant's understanding of the law. I do not accept the truth of his belated statement that he felt fear. It is bizarre. 18. Finally the appellant submits that the kicking of the child was a lawful correction pursuant to section 61AA of the Crimes Act. The fact that he says this was the case is a direct contradiction of his self defence and accident arguments, dealing as it does with the reason for the application of physical force. I also observe that this is in direct contradiction of his evidence or submissions that the kick did not occur. However I will entertain the argument, as it is the one that the Appellant seems to be most invested in. 19. 61AA allows as follows: (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: 1. the physical force was applied by the parent of the child or by a person acting for a parent of the child, and 2. 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. 3. (2) to (5) are not relevant to the current circumstances. 1. It is the case that the physical force was applied by a parent. It seems to be now the Appellant's position that the force was applied by way of punishment. He also suggested in the Local Court proceedings that IP agreed to punishment in this form, she denied that this was ever the case. If it is relevant I do not accept that there was ever any such agreement. Even if there was, it does not assist the Appellant in the current circumstances. 2. The Appellant seems to be submitting that the kick, which he concedes, at least for the purpose of this argument was reasonable by way of lawful correction. However having regard to the age and state of maturity of the child and the nature of the alleged misbehaviour or other circumstances it is difficult to understand in what circumstances kicking a 6 year old child in the leg, even if the child kicked first could be seen as reasonable. The undisputed facts are that the Appellant was angry and shouting at IP. The child objected to the shouting directed at the mother, and may have lashed out himself. A kick to a child's leg by an adult is not reasonable punishment. The action as described by the witness was a lashing out in anger. There is no evidence, even from the Appellant that it was accompanied by any form of education or explanation as to behaviour, which even if physical punishment or force was called for, would be a requirement for physical parental control to be found reasonable. 3. As I understand it, it was in relation to this consideration that the Appellant considered a jury necessary. Apart from the fact that a jury is not available or appropriate for a hearing such as this, neither the prosecution (or the appellant) indicated the matter should be committed for hearing when the matter was before the Local Court. I believe I am capable of understanding and discerning what proper community values are. As well as being an experienced Judge I am a member of the community. 4. The proposition that kicking a six-year-old child, even if that child is behaving inappropriately be viewed as lawful correction is such a bizarre proposition that I have no difficulty rejecting it, as the Magistrate did. Many options available to to the appellant were in order to correct the child without resorting to physical force. 5. I have therefore found to the standard of beyond reasonable doubt that on the day in question the Appellant raised his leg and kicked the complainant in the leg. The kick was hard enough to cause immediate pain which lasted for a number of minutes. It is possible that the kick was in response to a kick to the Appellant by the child. I do not accept that either the child or his mother, if that was relevant, ever consented to the kick. I do not accept that the kick was accidental. I find that the kick occurred because the Appellant was angry with the child's mother and was angry that the child had intervened. I find that the kick had nothing to do with lawful punishment or correction. I do not accept that the child's actions caused any fear in the Appellant at all. 6. I point out to the Appellant that an assault does not require any bodily harm to be proven but in the circumstances of this case I accept that immediate pain and some minor reddening occurred. 7. I understand that the Appellant proceeded with this trial and appeal because he wishes to change the law concerning parental correction. For that reason will make sure these Reasons on Appeal are published and made available to him. ********** 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: 18 November 2020