ACP v Queensland Police Service (No 1)
[2017] QDC 292
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- Unreported Judgment
- Appeal Determined (QCA)
- ACP v Queensland Police Service (No 1)[2017] QDC 292
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ACP v Queensland Police Service (No 1)[2017] QDC 292
ACP v Queensland Police Service (No 1)[2017] QDC 292
DISTRICT COURT OF QUEENSLAND
CITATION: | ACP v Queensland Police Service (No 1) [2017] QDC 292 |
PARTIES: | ACP (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | ID 99/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Ipswich Magistrates Court |
DELIVERED ON: | 8 December 2017 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 27 October 2017 |
JUDGE: | Horneman-Wren SC DCJ |
ORDER: | 1.Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – where appellant convicted after summary trial of one count of common assault – where appellant contends that he was denied natural justice – where the appellant submits that the physical force used in the assault was light – whether the learned magistrate erred in deciding that the defence of domestic discipline did not apply – where appeal dismissed |
COUNSEL: | The appellant appeared in person Mr F Anoozer for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]On 16 November 2016 the appellant, ACP, was convicted after a summary trial in the Ipswich Magistrates Court of one count of common assault. He had been charged that on 25 October 2016 at Summerholm in the state of Queensland, he unlawfully assaulted MF. MF was, at the time, the 14-year-old son of MP. MP at the relevant time, had been married to ACP. MF was ACP’s stepson.
- [2]Upon his conviction, ACP was fined $1,800. His conviction was recorded. ACP appeals to this court against his conviction.
- [3]For the reasons which follow, the appeal should be dismissed.
The nature of the appeal
- [4]The nature of an appeal under s 222 of the Justices Act 1886, being an appeal by way of rehearing, is that the appellate powers of the court are to be exercised for correction of error.[1] The court is required to conduct a real review of the trial and the learned magistrate’s reasons.[2] In doing so, the court must give due deference to, and attach a good deal of weight to, the views of the learned magistrate;[3] but it remains for this court to draw its own conclusions on the evidence.
- [5]In Fox v Percy at [27], Gleeson CJ and Gummow and Kirby JJ observed:
“If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
- [6]Further on, at [29] their Honours said:
“But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.”
The case against ACP
- [7]MF was interviewed by police at the Morningside Child Protection Unit on 13 January 2016. A record of that interview was admitted into evidence pursuant to s 93A of the Evidence Act 1977. In that interview MF described the events of the morning of 25 October 2015 at the rural property on which the family then lived as follows:
“Well it was like 8.30 in the morning and ACP woke me up out of bed and dragged me out of my room and pulled my ears and my hair and dragged me outside, basically and just threw me in the ground and kicked me with his boots on and hit me a couple of times. Mum came out at that point and she was yelling and they were arguing. I got back up while they were arguing and mum said something and ACP was just even more angry and he started chasing me and I was just in my undies and I didn’t have any shoes on and I sprinted to the gate and just ran off basically, and then he yelled at me to get the cattle in. I run across a ploughed field without my shoes on and stuff.”
- [8]Later in the interview, MF described the events as follows:
“He opened my door quickly and slammed it into the wall and that sort of woke me up in a fright and he ran over to me and grabbed me by the hair and started dragging me along the floor and pulled me up, I’m hobbling along so he doesn’t rip my hair out, probably would, and then we get outside and he pushes me to the ground and he kicks me while I’m down and I tried to get up and he kicks me and then he kicked me again and by that time, mum made it to the door and she yelled at him and he sort…”
- [9]Later still, MF described being kicked in the chest. He described having attempted to get up from the ground and that ACP “sort of hit me and pushed me down at the same time and he kicked me again and mum yelled at him, got his attention and that’s when I got up and had my arms open.”
- [10]He explained being hit as “just on the head sort of thing.” He said he thought ACP hit him with his palm. He said that he was kicked twice. He said that when kicked, he felt “sore, gasping for air, still confused.” He said that upon being kicked he felt immediate pain, and that ACP was wearing steel capped boots at the time.
- [11]MF said that when he got up, he was protecting his head. At that stage ACP backed off, but then started chasing him. MF said he ran about 100m, past the meat shed on the property. He came to a gate which was just over his height. He had to “lob” himself over the gate and he ran into a paddock. He said that ACP was yelling at him that he was lazy and incompetent.
- [12]Throughout all of this, MF was wearing only underpants. He was not wearing any shoes. He described having had run about 200m through a ploughed paddock in bare feet, which hurt.
- [13]Police attended the property on 25 October 2015. A photograph of MF’s chest was taken by Constable Peter O'Donnell on that day. It became Exhibit 2. It shows a red mark on the left side of MF’s chest.
- [14]MF was cross-examined as to whether he had been thrown to the ground by ACP or pushed with an open palm. MF said:
“Well, as he was dragging me along when he let go he let go with force and threw me to the ground. Then he kicked me, and when I tried to get up, he hit me.”
- [15]It was then put to MF that ACP took him outside the house and slapped him once with an open hand and that he then fell over. MF said that was not true.
- [16]It was also put to MF that ACP did not kick him but “nudged” him with his boot in order to get him up off the ground. MF’s response was that “there was force behind it and I felt pain after it so…”
- [17]It was put to him that there was a first nudge followed by a second “firmer nudge”. He said that is not what happened.
- [18]When asked of his relationship with ACP, MF said it was “horrible”, and “we just never got on really.”
- [19]When asked about the delay between the incident and making his statement to police in January 2016, he said “I didn’t have a chance to.”
- [20]When it was suggested that he had not wanted to proceed with the matter, he said he was confused as to his views on the matter and what he should do with it.
- [21]MF’s mother, MP, gave evidence. She said that she awoke on the relevant morning to a “weird sound… sort of like heavy breathing moving down the hallway.”
- [22]She was not sure what it was as she was a bit “dozy” and thought to forget it. She then heard ACP outside “yelling, something in a loud voice”, at which she thought she had better go and find out what was going on.
- [23]She said she went outside and saw ACP:
“Slapping and hitting MF and yelling abuse, and I could see MF wasn’t even really fully awake yet. He was, sort of, using defensive moves and you know, taking it, basically – getting abused because he should have been up already and, you know, he – and he wasn’t. So ACP was angry.”
- [24]She then described events as follows:
“Well, he was hitting him about the head and shoulders and neck or, sort of, upper torso area. Pushed him and shoved him, slapped him – it was just ongoing, like, backwards and forwards with the abuse. It was quite frantic and I saw what was going on, and I yelled, because I could see that MF was, you know, in defence mode and – and really not registering what was going on. He wasn’t even really fully awake, by the look of him. And so I just yelled ‘stop’, you know, and ACP, sort of, then turned his attention to me and said, you know, ‘leave – leave it alone – I’m disciplining him.’ And I, you know, thought it was over the top, and he kept going and he’d actually – MF fell to the ground and he was, sort of, on his side, curled up in front of ACP, and he yelled at him to get up, you know, ‘I told you never go down in a fight’ and started kicking him in steel cap boots, and that’s when I basically yelled ‘stop, he’s had enough.’ You know, ‘leave him alone.’”
- [25]ACP gave evidence. On the day in question, he said that he was up at daybreak knowing that they had a crop to plant. As soon as it was daylight, he ploughed the field. He wanted the cows out early so that they had the day to feed. He had only been home three weeks and said that MF had been “deteriorating”, which was apparently a reference to MF’s attitude to his chores.
- [26]At about 8.30am, he went into MF’s room to wake him. ACP said that he was being quiet so as not to wake the baby, who was asleep in the room opposite MF’s. He said that he gave MF:
“Just a bit of a – a – a shake. Like, you know, just – I sort of grabbed his ear, just pressed his ear really.”
- [27]He denied pulling MF out of bed by his hair. He said that MF got up and walked with him, that MF was confused and dazed and that ACP grabbed the underside of his arm and walked outside. The purpose of doing so, ACP said, was because he wanted to talk to MF about pulling his socks up and to address MF ignoring him, and how MF was being inconsiderate to everybody.
- [28]ACP said that he was talking to MF, telling him to listen to his mother and his teachers. He said he pulled MF’s ear and said “listen don’t – and I did, like (indistinct) and say ‘use your brain. Switch on. You’ve got an opportunity here, you know, with my son to watch him grow up. He’s doing well. You can do the same.”
- [29]He described his manner and tone as:
“It was sort of disciplinary in a regimental style, you know, that – you know, you’ve got to stop – because you’re making your mother sad. You know, you’re doing nothing with your life ---“
- [30]ACP said that “this is when I did slap him. I’m not – I’m trying to make something out of him.”
- [31]When asked how many times he slapped MF, ACP said:
“Q:So you slapped him – did you slap – how many times did you slap him?
A:Two. Let’s stay three. There’s no more than three, though. And the reason why I slap him is because he’d, like, ignore me.”
- [32]He said that “Yeah. I got his attention back again.”
- [33]He said at that point MF “He just, you know, pulled away. Like he just pulled away from me and just fell over.”
- [34]ACP was asked if there was any kicking of MF and he said:
“The situation was we basically said what I said. And I said to MF ‘get up’. And he ignored me. And I just give him a little nudge to get up. And he didn’t – he ignored me again. And I just said ‘get up’. And I give more force – escalated the force of that. And, you know, it would have been unpleasant, but I that the anatomy – the physiology where I was doing it. I wasn’t, like, going to the groin, head, back, spine. It was in the pectoral muscle and – to get up. It was painful, but not there to injure. And I was inflicting pain only for him to get up. I wasn’t going to help him get up. He had to get up himself.”
- [35]When asked to describe his relationship with MF, ACP said:
“He was a problem child. He just had a chip on his shoulder. It’s unfortunate, but you know, just ---“
- [36]He said that when MP came out she said:
“Stop”. I said “It’s alright, it’s alright. He’s alright. I haven’t hurt him.”
- [37]ACP described MF as being in his underpants. He said:
“MF was in his jocks. He was in those you know, those bike pant things that – they’re underpants, but, you know, you can’t see through or anything like that. And MF sort of walked away but I wanted him – I was firing up a little bit, so I made him run. So I sort of, like you know, ran after him a little bit, just because to sort of hurry him up. And then I came back.”
- [38]In cross-examination, ACP said that he was annoyed and angry with MF on the morning, but that he was firm and controlled. He refuted having worked himself up into a rage.
- [39]In relation to having “nudged” MF when he was on the ground, ACP said:
“No. I think it was unpleasant, but it’s not – it’s not something that I’m trying to teach him that – don’t go on the ground because somebody, one day, if you think you’re safe on the ground, they’re going to do terrible things [indistinct] and all their mates are going to jump in.”
- [40]He denied having pushed MF to the ground. When asked if he admitted inflicting pain on a 14-year-old boy, ACP said:
“Yes. I – I – pain, but not to injure him, not to hurt him.”
- [41]He accepted that he possibly caused the mark to MF ’s chest depicted in the photograph, but suggested that if it had been caused by a kick from him, as opposed to a “nudge” it would have been blue and bruised by the time that the photograph was taken some eight hours later.
- [42]When it was suggested to him that, according to him, his dealing with MF’s attitude had gone beyond talking to him, ACP said “You’ve gone to the point where you’ve got to change and do another option.” He said that he “was trying to instil character in the boy.”
- [43]The case for ACP was put on the basis that the defence of domestic discipline under s 280 of the Criminal Code applied. The extent of the submissions for ACP were as follows:
“Your Honour, obviously, it comes down to s 280 of the Criminal Code. ACP was in a position in the place of a parent being a stepfather. And it’s up to, obviously, your Honour to determine whether the discipline that ACP gave to MF was reasonable under the circumstances. In – under ACP’s evidence, he says that he was firm and controlled in dealing with MF and also did not, as you’ve heard him explain in regards to nudging him rather than full-blown kicking him, your Honour has also – that MF resented his stepfather and there was obviously some attitude and some difficulty there between the relationship.
Obviously, there had been a history of MF not following instructions or being – doing as he is directed. ACP also gave evidence that this also extended to MF’s mother and that ACP’s actions were based on the fact that he wished to provide discipline to MF as he had been missing a male – a role model for a number of years and needed to have a firm hand upon him in order to fulfil his opportunities in the future. I don’t think I have anything further, your Honour.”
- [44]The prosecution submissions were that the physical force used on MF was excessive and was not reasonable. As to the lack of intention on ACP’s part to cause injury, it was submitted that he caused pain and that the charge reflected that no actual injuries were inflicted.
- [45]The prosecutor submitted that ACP had a “dysfunctional, disordered view of what appropriate domestic discipline is.” Whilst ACP may have subjectively believed that he was doing the right thing, it was not reasonable.
The magistrate’s decision
- [46]Having recited the complainant’s evidence, the learned magistrate observed:
“So it’s quite plain that MF describes a quite violent assault upon him.”
- [47]Her Honour then summarised, comprehensively and accurately in my respectful view, the evidence of both the boy’s mother and of ACP.
- [48]The learned magistrate then observed that the real matter for consideration was whether or not it was a case of domestic discipline under s 280 of the Criminal Code, which would make the assault authorised, justified or excused by law. Her Honour set out that it was the prosecution’s duty to satisfy the court beyond reasonable doubt that any assault was unlawful. Her Honour then summarised s 280 saying, “but the law permits parents to use, by way of correction, discipline, management or control, such force as is reasonable under the circumstances.”
- [49]The learned magistrate found that it was clear that ACP was in a parental position with the child and was “therefore, entitled to employ discipline, provided it is in accordance with the law.” Her Honour then stated that it was “necessary for the court to be satisfied that the defendant’s actions were not by way of correction, discipline, management or control, or that the force used was not reasonable and “reasonable is an objective view of the circumstances.”
- [50]Her Honour then said that she accepted the child’s evidence. Her Honour considered that he had “described the incident in some considerable detail”, having spoken in a way which was fairly typical for 14-year-olds. She described him as being “quite forthright in what he said.”
- [51]The learned magistrate said that she accepted that the boy’s mother “essentially stood by the version of her son.”
- [52]Her Honour accepted that if ACP had gone into MF’s room in the way in which MF described, MP should have heard that; but did not think that this was necessarily so. The learned magistrate observed that, in any event, what she heard was sufficient to get her to get up from her bed and go outside to see what was happening between ACP and MF. Her Honour accepted MF’s version of how that occurred.
- [53]In respect of ACP’s evidence, her Honour said:
“I, in no way, accept the version of ACP who has, in my view, shown little insight in relation to his parenting obligations, and that his behaviour towards MF has been largely an endeavour to minimise or justify his action. How any parent could possibly think that it was appropriate to nudge a child, as he would put it ‘euphemistically’, in the chest with steel capped boots on with, perhaps, a view of encouraging him not to lie on the ground thinking he was safe is just – well, beggars belief. It is quite breathtaking in its absence of insight. And the fact that Exhibit 2 clearly shows a mark on MF’s chest and ACP has, in no way, disputed that mark was potentially caused by his actions, and even on his own version of events, he accepts that MF would have been in pain or would have been hurt, but that he would not have been injured. I am not quite sure what the fine distinction is in his mind about that. But clearly, his behaviour was unjustified and totally unlawful.”
- [54]The learned magistrate then expressed her conclusions in respect of the issue of s 280 as follows:
“In no way was it appropriate for him to behave in the way in which he did. It is very clear that this child was not back chatting him, was not mouthing off at him, was not shaping up to him, was not using physical force in any way against ACP. This child, it seems – or this – MF, a young man of 14, was clearly being dragged around because his stepfather took the view that he needed to have a discussion with him at that moment. His action then, in letting this young person work for some period of time – and I don’t know how long it was – but for some period of time in just his underpants and no boots on in a country area, as I say, was either done to humiliate the boy or was done as some type of punishment which ACP thought was appropriate in his mind. His actions have been, as I say, without any justification in any way, shape or form.
It is therefore clear that I consider that the prosecution has discharged its onus of proof in relation to the provisions of s 280 and has clearly discharged its onus of proof in relation to the charge of common assault. I therefore find the defendant guilty of the charge.”
The grounds of appeal
- [55]The issues which ACP raised in his appeal notice and in written submissions filed in the appeal, and in oral submissions made in the course of the hearing of the appeal, in which he was self-represented, may be summarised as follows.
- [56]First, ACP contends that he was denied natural justice. There are two aspects to this complaint. One is that the learned magistrate would not permit him to tell her of his parenting of his other children, with a view to demonstrating why he is a good parent. He contends that he was berated and bullied when giving evidence, and criticised as being a bad father. He contends that when he tried to explain what he had done (as a father) he was shut down. In particular, he says that he was not allowed to elaborate on what he had done in raising his son, who was born to his first wife not MP. ACP had given evidence about that child who is apparently quite successful, having obtained an OP 1 in his schooling.
- [57]In his written submissions ACP set out some of the matters which he wanted to elaborate upon in that regard, including MF ’s mother’s pride in that son of his earlier marriage having achieved so well.
- [58]The further aspect to ACP’s complaint of a denial of natural justice is that his lawyer would not permit him to raise other issues concerning MF, and ACP’s parenting of him. By contrast, he contends that the prosecution was “allowed to rave on about other matters that I was not charged for and slander, they were allowed to make examples that I was not allowed.” ACP, in his written and oral submissions, provided examples of the matters he would have liked to have raised in evidence in that regard. Without descending into particular detail, they included how MF performed at school and a particular alleged unsavoury episode of conduct.
- [59]The second ground advanced by ACP is that he only used what he described as “light force” upon MF in the incident from which the charge arose.
- [60]Thirdly, he contends that there were inconsistencies in MF’s evidence, particularly that MF could not move 25 to 30 portable cattle panels, as MF was simply not strong enough to do so and ACP would not expect him to. ACP says that those panels were moved the previous day by himself, MF and MP. He contends that MF exaggerated his evidence to secure ACP’s conviction.
- [61]Fourthly, ACP raises the length of time between the incident in October 2015 and the complaint being made in January 2016. He says that his lawyer did not bother to challenge MP’s evidence in respect of that delay. He suggests that the making of the complaint followed the breakdown of his relationship with MP and that she simply changed her mind.
Fresh evidence
- [62]Section 223 of the Justices Act 1886 provides:
“223 Appeal generally a rehearing on the evidence
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.”
- [63]ACP’s notice of appeal, in identifying the bases upon which he appealed, and his filed written submissions, contained statements of fact as well as his submissions. No criticism is made of ACP in this regard. He has represented himself throughout the appeal. He has no legal training. He frankly, both before the magistrate and in the appeal, said that he has some difficulty in expressing himself. However, in the context of the evidence upon which the appeal is to be determined, there is evidence contained within those submissions which goes beyond that which was before the learned magistrate. As I have already noted, ACP included in his appeal notice and submissions evidence which he says he would have put before the magistrate if he were permitted by her Honour to do so, or which his lawyer did not put forward. This evidence was included in his submissions with a view to demonstrating the denial of natural justice which he asserts.
- [64]In addition to those factual matters contained in the appeal notice and the submissions, ACP annexed to his filed written submissions, three documents. One was a one-page document entitled “MP’s affidavit extract” which is apparently taken from an affidavit filed by MP in other proceedings.
- [65]The second is apparently an extract from the application made by police for a temporary protection order to be made against ACP arising out of the events which gave rise to this charge. It contains a description of the events of 25 October 2015 as asserted by police in that application.
- [66]The third is a document apparently written by ACP in November 2015 in which he sets out, amongst other things, his account of the events. It seems to have been written in respect of the domestic violence application. Essentially, it goes no further than the evidence which he gave in the proceeding before the magistrate and the submissions made on his behalf then, and those which he makes himself on the appeal.
- [67]In those circumstances Mr Anoozer, who appeared for the respondent, took no objection to any of that material.
Consideration
- [68]In respect of ACP’s contention that he was denied natural justice because the magistrate would not permit him to tell of his parenting of his other children, and particularly his son, with a view to demonstrating that he was a good parent, the following exchange took place between her Honour and ACP, after ACP had referred to his son being an OP 1 student:
“Bench:Just before you go on there, were you present during the raising of that child?
ACP:---I’ve been – yes. I’ve been ---
Bench:What? You were living with your – the boy’s mother?
ACP:---No. I – we’ve divorced now.
Bench:Yes? --- okay. But at the time you say this boy was being raised to become an OP 1 student, were you present or were you not?
ACP:---We were – we have – I’ve been – that’s why I’m down in Brisbane.
Bench:No, I’m asking you, were you present during the time that he was being raised to this OP 1 student, or was he living with his mother?
ACP:--- Predominately living with his mother for sure.
Bench:Okay. Well, I think that answers the question.”
- [69]In my view, there was nothing in the learned magistrate’s questions to ACP which prevented him from giving evidence of his raising his son. It is to be noted that the exchange between ACP and her Honour arose in the course of the prosecuting police officer cross-examining ACP. When ACP had referred to his son having obtained an OP 1, he had been asked:
“Well you said in your evidence in chief that ‘I was firing up a little bit.’”
- [70]ACP had responded:
“Yeah. I – I was – I’m passionate about being a father; passionate. You know, I’m – like, getting – my – you know, I believe so strongly [indistinct] getting a kid up early on a Saturday morning – Sunday morning so they go to bed early and so they’re ready for school Monday morning. My son’s an OP 1 because of --- everybody instilling that into him.”
- [71]In his evidence in chief, he had said in respect of a conversation which he had with MP following the incident with MF:
“You’ve got concerns. I too don’t want to – but, like, you’ve got to look at my son, you know, and all that sort of jargon. He can follow the same line. You know, he can be a success, you know? Like, if you – he will be flat out having a good job. Like, I’m trying to instil diligent character into the kid that’s instilled from the land to do something great with his life. And you just – just give me the consideration that you don’t agree, but watch to see how it improves, because it had been deteriorating. His attitude was so bad. And, you know, I’m not going to – I don’t want to attack him or anything, but I’m trying to help him and help MP, because MP didn’t know how to discipline. She’s [indistinct] an emotional pork chop.”
- [72]This was the extent of the evidence which ACP had given about the raising of his son, or that son’s achievements. ACP was not re-examined.
- [73]It is difficult to see the relevance of any evidence concerning ACP’s parenting of, or the achievements of, his son. The evidence may have been relevant if it were said that the parenting of his son had included physical measures such as that occasioned to MF, and which were said to be part of the domestic discipline of that son also. That may have been relevant to a consideration of whether such measures were part of the domestic discipline and whether they were reasonable. Her Honour’s enquiry as to whether ACP was present during the raising of that child might be thought to have been directed towards that issue. However, ACP did not appear to be referring to the raising of the son by such means. Nor did he seem to be suggesting that his son’s achievements were attributable to such measures or methods. Rather, he seemed simply to be pointing to his son’s achievements by way of comparison to MF’s as an explanation for why it was that MF needed to be subjected to physical discipline. On that basis, the evidence concerning ACP’s son would seem irrelevant and inadmissible.
- [74]In any event, upon review of the transcript I do not consider that ACP was shut down in the way he suggests. There is no substance to the contention that he was denied natural justice in that way.
- [75]In relation to the second basis upon which he asserts that he was denied natural justice, that is, that his lawyer would not allow him to raise other issues concerning MF and ACP’s parenting of him, I am of the opinion that there is no substance to that contention either.
- [76]Again, there would be issues of relevance and admissibility associated with any such evidence. Judging from the examples which ACP included in his material on the appeal, particularly MF’s performance and conduct at school and at home, those matters could only have been relevant to the issue of whether some domestic discipline of MF was called for. It would not have been relevant to whether the particular discipline to which he was subjected on 25 October 2015 was reasonable. Given the learned magistrate’s finding that the discipline was not reasonable, a finding which I consider was not only open upon the evidence, but the only finding open, further reasons for disciplining MF would not have any bearing on that finding. Those further matters could not have changed the discipline handed out to him on that occasion from being unreasonable and inappropriate to being reasonable and appropriate.
- [77]As to the second ground, that the level of force used was only “light”, ACP sought to rely upon his own evidence in that regard, and the description of the events included in the police application for a domestic violence order. Whilst it is true that the police did describe ACP as having kicked MF “lightly in the chest twice”, as was pointed out to ACP in the course of the hearing of the appeal, and which he acknowledged and accepted, the description by police also included:
“At about 7.20am, the respondent has awoken the named 14-year-old, MF, by dragging the 14-year-old from his bed. The respondent has dragged MF from the house along the floor by his hair. The respondent has pulled the named MF by the hair and ears and has pushed MF to the ground in the rear yard. The respondent has slapped MF around in head and torso twice and has then kicked MF, lightly in the chest twice.”
- [78]In the hearing before her Honour, ACP did not contest that he slapped MF two or three times and that he kicked him twice; the second time with greater force than the first. He readily accepted that this would have caused MF pain, but seeks to distinguish that from causing injury. In the absence of injury to the child, ACP seems unable to accept that the discipline could be unreasonable. He refers to the presence of a red mark rather than a dark bruise as being demonstrative of that. He does not seem to accept that the red mark is itself an injury.
- [79]I have no doubt, having read carefully the record and having heard ACP’s submissions on appeal, that this is his genuinely held view of the discipline. But that is not the test. It was for her Honour to determine, on all the facts and in all of the circumstances as she found them to be, whether what ACP did at the time was reasonable.[4] If the prosecution satisfied her Honour beyond reasonable doubt that the force used was not reasonable, in her assessment of reasonableness in all the circumstances, then the defence was not available.
- [80]Her Honour clearly, and entirely understandably in my respectful opinion, was satisfied by the prosecution that the force used by ACP, described by him as “light” was not reasonable. There was no error made in that finding. That ground must fail.
- [81]The ground that there were inconsistencies in MF ’s evidence, and that he exaggerated to secure ACP’s conviction, relates to a very small part of MF ’s evidence in his interview with police when describing the area of the property that he was running across. MF said:
“We call it the flats and I ran about 200m out into that, ACP stopped and he started yelling at me, telling me what to do and that sort of stuff and I had to go through a ploughed paddock, a ripped up paddock in bare feet and it hurt a lot too, it was about 200m through the ploughed paddock and I had to open up the gate to get the cattle out and then rearrange the stuff on the side of the road for later that day.”
- [82]ACP says that this relates to MF claiming to have moved and set up 25 to 30 portable cattle panels. However, the only suggestion that it does relate to that comes from ACP in the further material which he filed in the appeal. In the trial before the learned magistrate, the only evidence of this matter given by ACP was in cross-examination. It was put to him by the prosecutor that:
“And he’s sent across a paddock for hundreds of metres in nothing but his underwear to do fencing with you, isn’t he?”
- [83]To this, ACP answered:
“No. He never did any fencing, not one bit. Nothing.”
- [84]When it was again put to ACP that MF did fencing he answered:
“No. He did go out in his underwear, but there was no fencing.”
- [85]That was the full extent of his evidence on that issue. As already noted, he was not re-examined. In my view, there is no basis to assert on the appeal that, on the evidence before the learned magistrate, the evidence of MF was demonstrated to be inconsistent or exaggerated such that her Honour would take those matters into account in considering the credibility or reliability of his evidence. There is no merit in this ground.
- [86]The fourth ground concerns the delay between the incident on 25 October 2015 and MF’s complaint to police on 13 January 2016. ACP’s particular concerns in that regard are that MP had said that she had not had time, whereas he asserts that she did have time, and that what really motivated the complaint in January was the breakdown of their relationship.
- [87]MP was cross-examined about that delay. The relevant exchange was as follows:
“Q:One last question: why was there a delay in reporting this to the police? It was on 25 October 2015, but a statement wasn’t provided by MF until January of the following year. Was there any reason for that that you’re aware of?
A: Well, because what happened, the events that happened on the 25th, the police ended up coming and putting on a domestic violence protection order, and we were going through court. And in between October and November, when I had an accident on the farm with cattle, which resulted in me going to hospital for three weeks in Brisbane, we were living on the same farm. I was in the house, but he was supposed to be in the granny flat. But he was moving to and from. But, anyway, we were trying to live separately on the same farm because we were broke. But it essentially didn’t work, and I had to leave in November to get medical attention, so I took the kids with me. And, of course, we weren’t local, so every time the police tried to come around, talk and say, you know, do you want to press charges, whatever, we weren’t there. And then Christmas came, and there was holidays and things and – and then eventually, obviously, in January they caught up with us, and I said, look, well, I’m in hospital, but the kids are in Brisbane with my parents. And it went from there. So that’s yes, the delay.
Q:Okay. So you weren’t aware on any confusion on MF’s part as to whether he wished to continue with the matter?
A:---No.”
- [88]The reference to confusion on MF’s part was a reference to his evidence in that regard.
- [89]The delay was a collateral issue. Having obtained that explanation in cross-examination, there was no basis upon which that could have been challenged in the way ACP suggests it ought to have been in the trial, and which he seeks to do on the appeal.
- [90]In any event, the delay is entirely irrelevant. This is not a case in which the learned magistrate was being asked to consider whether an incident the subject of the complaint happened at all, given the delay in complaining about it. Nor was it a case in which the reliability of the accounts of MF and MP were challenged on the basis of lengthy delay. It was a case in which it was common ground that an incident had occurred. ACP’s account of that incident was not substantially different to that of MF. The real issue was whether what occurred gave rise to the defence of domestic discipline. As such, the delay of a few months was irrelevant.
- [91]Even if a subsequent breakdown of the relationship was the true motivation for making the complaint, it in no way altered or affected the substance of it.
Conclusion
- [92]No error has been demonstrated in the learned magistrate’s decision. A full review of the evidence and proceedings before her Honour clearly establishes that in all of the circumstances of this case, her Honour’s conclusion that the prosecution had proven beyond reasonable doubt that the defence of domestic discipline did not render this assault lawful was not only open, but the only conclusion open.
- [93]The appeal must be dismissed and the decision of the learned magistrate confirmed.
Footnotes
[1]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 – 204 [14]; Allesch v Maunz (2000) 203 CLR 172 at 180 [23]; CDJ v VAJ (1998) 197 CLR 172 at 201 – 202.
[2]Fox v Percy (2003) 214 CLR 18 at 126 – 127 [25] per Gleeson CJ, Gummow and Kirby JJ.
[3]Stevenson v Yass [2006] 2 Qd R 150 at 162 [36] per McMurdo P.
[4]R v DBG [2013] QCA 370 at [21] and [31].