R v Gee[2016] QSC 23

SUPREME COURT OF QUEENSLAND

[1] PETER LYONS J: As an alternative to the first count of attempted murder, the defendant is charged with the unlawful assault of a four month old child.

[2] Under s 245 of the Criminal Code, an assault is constituted by moving or touching a person, or by the application of force to a person, without that person’s consent.  Under s 246, an assault is deemed to be unlawful unless it is authorised or justified or excused by law.  Under s 335 of the Code, being the section on which the relevant count is based, an unlawful assault is a criminal offence.

[3] The defendant is the child’s father.  A difficulty arises in determining how to instruct the jury in relation to such a case.  A child of that age cannot itself give consent to any person touching or moving the child, or applying force to the child.  While a number of statutory provisions, including ss 247-281 of the Criminal Code, identify conduct which is authorised or excused, there is a vast area of conduct which would not be regarded as unlawful, and for which it is not possible to identify any statutory provision which might be said to provide authority, justification or excuse.

[4] Difficulties associated with this offence have been identified by some authors[1].

[5] Harland[2] suggests that a minor might be able to give consent to conduct that would otherwise be tortious.  Young[3] appears to provide some support for that position.  However, these views do not deal with the question of consent by a very young infant.

[6] Section 245 defines assault by reference to conduct of one person directed to another person, “without the other person’s consent”.  It seems to me that, by reference to the natural meaning of this phrase, conduct falling within the definition is an assault, unless the other person assents, which in turn requires a positive state of mind on the part of that person[4].  The term “consent” is not relevantly defined in the Criminal Code[5].  Nor, so far as I am aware, does the Code make provision for the extension of the expression “the other person’s consent” to consent given by yet a third person on behalf of “the other person”.  If the doctrine of agency is to be invoked, that would involve the application of the general law; and may be contrasted with the approach taken in s 7(1)(d) of the Code.

[7] In Horan v Ferguson[6][7], the Court of Appeal of this State had to consider circumstances in which a teacher who had touched a pupil might be found guilty of an assault.  Fitzgerald P referred to the judgment of Robert Goff LJ (subsequently Lord Goff of Chieveley) in Collins v Wilcock[8], where his Lordship said,

“Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.  (His Lordship then gave examples and continued) … Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.”

[8] As Fitzgerald P noted, in Re F (Mental Patient: Sterilisation)[9] Lord Goff referred to this as “a broader exception … to allow for the exigencies of everyday life”.  His Lordship in Re F continued[10]

“This exception has been said to be founded on implied consent ….  Today this rationalisation can be regarded as artificial; and in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent.  For this reason, I consider it more appropriate to regard such cases as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.”

[9] Of this statement, Fitzgerald P said[11],

“While the logical force of Lord Goff’s criticism of using a theory of implied consent as the basis for accepting ‘physical contact which is generally acceptable in the ordinary conduct of everyday life’ as lawful may be acknowledged, the broad common law exception which he prefers cannot be utilised in Queensland where the criminal law is codified.”

Demack J considered[12] that a child attending school tacitly consents “to receiving from a teacher tactile expressions of encouragement”; though he considered that this consent may be withdrawn[13].  His Honour also said[14] after a reference to Lord Goff’s earlier statement in Collins,

“… I accept the criticism Lord Goff made of the concept of implied consent being extracted from children, particularly, primary school children.  They are required by law to be at school.  To imply from their presence at school that they ‘consent to what goes on as part of a normal part of the education process’ invites the comment made by Wilde CJ in Reg. v Case[15], ‘children who go to the dentist make no resistance; but they are not consenting parties’.”

[10] It seems to me to be inherently unlikely that every young child attending school has, in advance of receiving a tactile expression of encouragement from a teacher, considered and given assent to such conduct.  A fortiori in the case of children in kindergartens, or, as is becoming increasingly more common, in childminding centres.  With respect, it seems to me that the approach of Demack J involves the imputation by law of consent to such conduct in the case of children, unless a child demonstrates otherwise.  So much is apparent from his Honour’s acceptance of what Lord Goff said in Collins.

[11] McPherson JA expressed agreement with the reasons of Demack J[16]; though his findings appear to be based either (in two cases) on the failure of the prosecution to prove absence of the consent; or (in the remainder) on justification of the touching under s 280 of the Criminal Code.

[12] I accept the statement by Fitzgerald P that a common law exception cannot be engrafted, as an exception to the definition of “assault”, onto the provisions of the Criminal Code.  Nevertheless, it is apparent from the judgment of the other two members of the Court that there is scope for the application of the approach taken by Lord Goff.  Conceptually, it seems to be there are two bases on which that might be so, particularly in the case of a very young child, or of a person whose mental condition, or perhaps state of unconsciousness, may mean that that person cannot give consent.  One is a consent implied by law, for conduct falling within Lord Goff’s exception.  The other is to recognise an implied authorisation by the community in respect of such conduct.  On either approach, conduct embracing physical contact which is generally regarded as acceptable in the ordinary conduct of everyday life would not fall within the scope of the offence.  However the former would seem more consistent with the views of Demack J in Ferguson.  It would also appear to be consistent with the view of Fitzgerald P in the same case.

[13] Accordingly, in the present case I propose to direct the jury that they would not find the defendant guilty on the assault count unless they are satisfied beyond reasonable doubt that he performed the acts alleged by the prosecution, and that those acts extended beyond what would be regarded as generally acceptable in the ordinary conduct of everyday life.  No doubt, in applying that direction, the jury should take into account, for the purpose of determining what is acceptable, the relationship between the defendant and the child.