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Local Court 29 May 2023

R v PS

[2023] NSWLC 17

Assault & violenceDomestic & family violence
CRIMINAL LAW DEFENCES LAWFUL CORRECTION CRIMES ACT, S 61AA ONUS OF PROOF APPLICABILITY OF S 141 EVIDENCE ACT NSW

Citation: R v PS [2023] NSWLC 17
Court: NSW Local Court
Date: 29 May 2023
Judge(s): Donnelly LCM

Background

A father was charged with one count of common assault under s 61 of the Crimes Act 1900 (NSW) and with contravening an apprehended domestic violence order. The prosecution alleged that on 15 October 2021 he struck his seven-year-old son once with a belt as punishment after the boy bent back a finger of his nine-year-old sister.

The defendant did not dispute that he struck the child with the belt. His case rested entirely on the statutory defence of lawful correction under s 61AA of the Crimes Act 1900. The contravention charge turned on the same facts, because the apprehended violence order contained a standard condition prohibiting assault of the person in need of protection or anyone that person lived with.

  • Whether the onus of proving the lawful correction defence under s 61AA of the Crimes Act 1900 rests on the defendant (on the balance of probabilities) or on the prosecution (to negative it beyond reasonable doubt)
  • Whether the Supreme Court decision in DPP v FD [2017] NSWSC 679, which placed the onus on the defendant, was correctly decided in light of the principle in Woolmington v DPP [1935] AC 462 and its Australian confirmation in King v The Queen (2003) 215 CLR 150
  • Whether the application of the belt constituted reasonable physical force for the purposes of s 61AA(1), having regard to the child's age and the nature of the misbehaviour
  • Whether the force applied was likely to cause harm lasting more than a short period under s 61AA(2)

Decision

The onus question. The magistrate identified a genuine tension between DPP v FD and the foundational common law principle from Woolmington that the prosecution must prove guilt and negative any properly raised defence. The text of s 61AA contains no express reversal of that onus, unlike provisions such as s 23A(4) of the Crimes Act (substantial impairment), which explicitly states the accused bears the onus. The magistrate noted that respected academic commentary had also questioned DPP v FD, particularly its reliance on s 141 of the Evidence Act 1995 (NSW) as displacing the common law position. Despite this doubt, the magistrate accepted that the Local Court was bound by DPP v FD and applied both standards in the alternative: whether the prosecution had negatived the defence beyond reasonable doubt, and whether the defendant had established it on the balance of probabilities.

Whether the defence was established. The magistrate found that the misbehaviour, bending a sibling's finger without causing lasting injury, was not serious in context. The defendant's account was found to have been overstated: his description of a "blood-curdling scream" was not corroborated by either of the children who gave evidence. The defendant also initially testified that he struck the child for hitting his sister, then corrected himself, a detail that further undermined the reliability of his account of the severity of the conduct. The magistrate concluded that striking a seven-year-old with a belt was not a reasonable response, particularly because other disciplinary options were available.

Physical harm. Independently of the reasonableness finding, the magistrate found beyond reasonable doubt that the belt strike caused bruising to the child, constituting harm that lasted more than a short period. This brought the conduct within the express exclusion in s 61AA(2)(b), meaning the defence was unavailable on this ground as well.

Outcome. Applying both the DPP v FD standard and the prosecution's obligation to negative the defence beyond reasonable doubt, the magistrate found the defendant guilty of both common assault and contravening the apprehended domestic violence order.

Orders Made

• The defendant is found guilty of the offence of common assault
• The defendant is found guilty of the offence of contravening an apprehended domestic violence order

Key Takeaways

  • The Local Court expressed doubt about whether DPP v FD [2017] NSWSC 679 was correctly decided, noting that s 61AA of the Crimes Act 1900 contains no express language reversing the common law onus, distinguishing it from provisions such as s 23A(4) that explicitly impose a burden on the accused.
  • Because the Local Court was bound by the Supreme Court decision in DPP v FD, it applied that standard alongside the alternative Woolmington standard, finding the defence failed under both approaches.
  • Under s 61AA, the reasonableness of physical force must be assessed against the child's age and characteristics and the nature of the misbehaviour; relatively minor misbehaviour without lasting injury to the other child weighed against the use of a belt on a seven-year-old.
  • Where force applied to a child causes bruising, a court is likely to find that harm lasted more than a short period, engaging the express exclusion in s 61AA(2)(b) and removing the defence regardless of the reasonableness analysis under s 61AA(1).
  • The question of whether s 141 of the Evidence Act 1995 (NSW) displaces the Woolmington principle in relation to statutory defences that do not expressly reverse the onus remains unresolved, and the correctness of DPP v FD on this point has been openly questioned.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 61, 61AA
- Evidence Act 1995 (NSW), s 141
- Corporations Law (Cth), s 998(6)

Cases
- Woolmington v DPP [1935] AC 462
- DPP v FD [2017] NSWSC 679
- King v The Queen (2003) 215 CLR 150
- Braysich v The Queen (2011) 243 CLR 434
- R v Ayoub [1984] 2 NSWLR 511
- R v Jawid [2022] NSWSC 788