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Supreme Court 26 May 2017

Director of Public Prosecutions v FD

[2017] NSWSC 679

Assault & violence
CRIMINAL LAW ASSAULT DEFENCE OF LAWFUL CORRECTION ONUS OF PROOF STANDARD OF PROOF ERROR OF LAW

Citation: Director of Public Prosecutions v FD [2017] NSWSC 679
Court: Supreme Court of New South Wales
Date: 26 May 2017
Judge(s): Lonergan J

Background

The defendant faced a charge of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW), arising from an incident in March 2016 in which he was alleged to have struck his teenage son on the legs and abdomen with a belt. At the Local Court, the defendant relied on the defence of lawful correction under s 61AA of the Crimes Act, which permits a parent to use reasonable physical force on a child by way of discipline within defined limits.

The magistrate dismissed the charge, finding she was "not satisfied beyond reasonable doubt that lawful chastisement and correction was not intended by the defendant." The Director of Public Prosecutions appealed to the Supreme Court on several grounds, principally that the magistrate had applied the wrong onus and standard of proof when considering the lawful correction defence.

The defendant conceded two of the three primary grounds of appeal, specifically that the magistrate had misallocated the burden of proof and had failed to make the findings required under s 61AA.

  • Whether the magistrate applied the correct onus of proof when assessing the s 61AA lawful correction defence, and in particular whether the burden lay on the prosecution or the defendant to establish or negate the defence.
  • Whether the magistrate made the necessary findings as to the ingredients of the s 61AA defence, including whether the physical force applied was likely to cause harm lasting more than a short period.
  • Whether the magistrate provided adequate reasons for dismissing the charge.

Decision

Lonergan J allowed the appeal, holding that the magistrate had committed an error of law by applying the wrong standard of proof. The correct two-step approach required the prosecution first to prove the assault occasioning actual bodily harm beyond reasonable doubt (under s 141 of the Evidence Act 1995). Only then should the court have turned to whether the defendant had established the lawful correction defence on the balance of probabilities, the standard applicable to a defendant's case under s 141(2).

Instead, the magistrate treated the absence of lawful correction as something the prosecution was required to disprove beyond reasonable doubt. This reversed the proper allocation of the burden. Her Honour effectively treated the defence as an element of the offence for the prosecution to negative, rather than as a matter for the defendant to establish on the balance of probabilities.

Because of this error, the magistrate never proceeded to examine the specific requirements of s 61AA, even though both parties had placed evidence and submissions before her on those elements. Her Honour's ex tempore reasons, while approached with appropriate allowance for the pressures on magistrates (consistent with the approach described in DPP (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402), were sufficiently clear to reveal the error without any need to scrutinise them closely.

The matter was remitted to the Local Court for redetermination. Because the original hearing required credibility assessments and findings under s 61AA, Lonergan J found there was no alternative to a full rehearing.

Orders Made

  • The appeal was allowed.
  • The magistrate's order of 14 June 2016 dismissing the charge of assault occasioning actual bodily harm was set aside.
  • The proceedings were remitted to the Local Court to be redetermined according to law.
  • The defendant was ordered to pay the costs of the appeal.
  • The defendant was granted an indemnity certificate under s 6(1) of the Suitors' Fund Act 1951, with the prosecution undertaking not to seek costs beyond what that certificate would cover.

Key Takeaways

  • Under s 61AA of the Crimes Act 1900 (NSW), the lawful correction defence is not an element of the offence that the prosecution must disprove beyond reasonable doubt; the defendant bears the onus of establishing the defence on the balance of probabilities under s 141(2) of the Evidence Act 1995.
  • A court must follow a clear two-step process in cases involving the lawful correction defence: first determine whether the prosecution has proved the assault beyond reasonable doubt, then determine whether the defendant has established the defence on the balance of probabilities.
  • Collapsing those two steps, and treating the absence of lawful intent as something the prosecution must negate, constitutes an error of law sufficient to ground an appeal and set aside the dismissal of criminal proceedings.
  • Lonergan J noted that the allocation of the onus of proof under s 61AA had not previously been the subject of judicial consideration by the Supreme Court, though the defendant conceded the correct approach in this proceeding.
  • Where a Local Court dismissal involves factual findings and credibility assessments that remain unresolved due to legal error, the Supreme Court will remit the matter for a full rehearing rather than substitute its own findings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61AA
- Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59
- Evidence Act 1995 (NSW), s 141
- Suitors' Fund Act 1951 (NSW), s 6

Cases:
- DPP (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402