Director of Public Prosecutions v Tiller

1. [1]

   The Director of Public Prosecutions (NSW) (“the plaintiff”) has appealed to this Court by way of amended summons filed on 5 August 20221 against the decision of Magistrate Clisdell of the Local Court of NSW at Queanbeyan (“the second respondent”) to dismiss charges against Emma Tiller (“the first respondent”) for assault occasioning actual bodily harm and common assault contrary to s 59(1) and s 61 of the Crimes Act 1900 (NSW) respectively. [1] The decision was made on 22 March 2022 following a contested hearing.

2. [2]

   The appeal is brought pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”), and in the alternative, pursuant to s 69(3) of the Supreme Court Act 1970 (NSW) by way of judicial review. This alternative basis for relief is relied on in the event that the Court is not satisfied that the appeal involves a “question of law alone” within the meaning of s 56(1) of the CAR Act.

3. [3]

   The plaintiff seeks an order that the orders dismissing the charges against the first respondent be set aside, and that the proceedings be remitted to the Local Court to be dealt with according to law.

4. [4]

   The appeal was heard on 3 November 2022. Ms E Jones of counsel appeared for the plaintiff and Mr S Lawrence appeared with Mr Mulligan for the first respondent. The second respondent (the Local Court of NSW) entered a submitting appearance.

5. [5]

   In short, this matter arises from allegations that on Tuesday 9 March 2021, between 2:40pm and 2:45pm, the first respondent struck the complainant to his left shoulder. At the time the complainant was 7 years of age and a student in Year 2 in primary school. He was new to the school, and a student in the class taught by the first respondent. The contact was admitted by the first respondent. At the beginning of the hearing, it was indicated that the defences of lawful chastisement and self-defence of another would be relied upon by the first respondent.

The Local Court Hearing

1. [6]

   A conversation recorded by police on 16 March 2021 with the first respondent was tendered through the officer in charge. Following a caution, the first respondent stated that the complainant was new to the school. She had taught Year 1 the previous year and accordingly knew her Year 2 children fairly well, but because the complainant was new, she did not know him so well. She had been having a “hard time … working him out”. She was working out whether his constant calling out and talking when the students were working was because “he needs help, he doesn’t understand, or whether he’s actually, um, knows what the expectations are and is choosing to not follow them.” He was “interrupting a lot. He was really struggling to follow instructions.”

2. [7]

   The first respondent stated “we’ve, sort of, got to a point where it was a problem.” This led the first respondent to speak with the complainant’s mother (who will be referred to in this judgment as “Ms L”), the day prior to the alleged offence. The first respondent stated it was an “ill-planned conversation”, she did not “have some of the things in place that I should have, like a specific list … of what to go through.” She “made it more as a casual call, and I would never do that, in hindsight. Um, being a fairly new teacher, lack of experience.”

3. [8]

   Ms L gave evidence at trial that during this conversation the first respondent stated she was beginning to “pick on” the complainant. Ms L was cross-examined about this and it was put to her that it was unlikely that the first respondent would have said she was picking on the complainant. In the recorded conversation with police the first respondent said that she did not remember if she used the word “picking” but “did feel that [she] was giving [the complainant] too much negative feedback.” She further stated, “I thought that the relationship was becoming negative and that I acknowledged that I thought our relationship was becoming negative … and that I needed to do something about that.”

4. [9]

   The alleged offences occurred towards the end of the school day on Tuesday 9 March 2021 while the complainant and other students were packing up the classroom, including by collecting pattern blocks from the floor and placing them in a box. The first respondent described to police that she saw the complainant with a “little bunch” of blocks in his hands, holding the blocks in front of his pants, “really close”, to another child’s face, who was sitting in front of him. She stated she had a “reflex reaction, I’m, like, he’s touching a part of his body, and he's really close to another child. It was a reflex, complete re, reflex thought, complete reflex action … of, that’s not, that’s not appropriate.”

5. [10]

   She stated:

6. [11]

   She further stated:

7. [12]

   At a further point in her evidence, the first respondent stated:

8. [13]

   The first respondent further stated that after she apologised for yelling at him, the complainant started to cry and stated that he never knows what to do. He told her that he did not understand how they did things sometimes and did not understand the work.

9. [14]

   The first respondent went on to say that after the complainant’s sister picked him up, she (the first respondent) walked straight to a supervisor’s office and stated “I’ve made a really big mistake … I’m mortified … at what I’ve done … but I can’t undo it. … I can’t undo a reflex reaction. It was in a, it was not, it, it is never excusable or appropriate, um, and I totally get that.” She further stated “I really did try to make sure that I did what I could for him … at that time, because yeah. Because that, something like that should never happen at school.”

10. [15]

    The first respondent clarified that the blocks were in front of the complainant in his hands outside his pants. She stated:

11. [16]

    She further stated:

12. [17]

    And:

13. [18]

    And also:

14. [19]

    The evidence from the complainant was adduced by playing an earlier interview recorded on video. A transcript of the interview was provided to the court as an aide memoire. The video interview with the complainant had been conducted on 1 August 2021. The complainant was not cross-examined.

15. [20]

    The complainant stated that the first respondent smacked him when they were packing up blocks, and the smack caused a bruise on his arm. He stated that the first respondent thought he was “doing something very silly”, but he wasn’t. When asked why he thought the first respondent thought he was doing something silly he stated he was holding the blocks near the top of his right leg. Further, before the first respondent smacked him, she said the complainant’s name in a loud voice and in the middle of the smack, she told him to get out of the room. The complainant then left the room. He also stated that after the bell rang, the first respondent said, “sorry that I did that.” The complainant stated that the bruise was very swollen, quite sore, and it really hurt when he tried to stretch it a little bit. He had to stay home for two days.

16. [21]

    Two photos depicting a bruise on the complainant’s left shoulder were also tendered. They were taken two days after the alleged assault.

17. [22]

    As referred to above, the complainant’s mother, Ms L, was called to give very short evidence about the conversation with the first respondent the day before the alleged assault. Her evidence was that the first respondent called her during a busy afternoon while she was at work. She stated: “she introduced herself to which I said that it was an unusual time to receive phone call [sic], she said that it wasn’t a very nice reason for a phone call, and I asked her what, was the problem. I highlighted that it wasn’t a great time to talk because I was in charge of [a very busy work environment] at the time.” The complainant’s mother continued:

18. [23]

    She further stated that she told the first respondent that she “found it unusual” because there had been no complaints about his behaviour at his two previous schools, pre-school, or day-care.

19. [24]

    In cross-examination, it was confirmed that the complainant’s mother took contemporaneous notes of the conversation. This was clarified to mean that she “jotted down on a piece of paper [at her work] the words ‘picking on [the complainant]’”, and that further details were included in an email she wrote to the school that evening. The email was not in evidence. She stated her contemporaneous notes included that the first respondent was “beginning to pick on my son, and it wasn’t very nice, and she was starting to lose control.” It was put to the complainant’s mother that the school’s note of her email complaint was that the first respondent was bullying her son. The complainant’s mother stated she was not surprised by that characterisation of her complaint. The last question in cross-examination was rejected – it was whether the complainant’s mother had ever smacked the complainant when he misbehaved. When rejecting the question, the second respondent indicated that the first respondent would need the “express permission” from the parent to come within the definition of “lawful chastisement” (actually called “lawful correction”) in s 61AA of the Crimes Act.

20. [25]

    Section 61AA was further discussed after the conclusion of the prosecution evidence (but before the prosecution case was formally closed). The second respondent indicated to counsel for the first respondent that he should “forget about the lawful chastisement bit” as “I think the problem is the formal consent that’s required these days. The law is an ass …”. The second respondent invited the first respondent to concentrate on the defence in s 418 of the Crimes Act, being self-defence of another.

21. [26]

    It is convenient now to set out the relevant portions of s 418 of the Crimes Act which reads as follows:

22. [27]

    The prosecution case then formally closed. No application was made to the second respondent to dismiss the matter on the basis of no prima facie case. The transcript then sets out a heading “CASE FOR ACCUSED”. However, what occurred indicates a more informal course was followed. The first respondent’s representative stated the following:

23. [28]

    It can be noted from this exchange that the first respondent’s representative was attempting to get some informal indication from the second respondent as to whether or not the second respondent wished to hear further evidence from the first respondent. It can be noted further that the first respondent’s representative decided, on the basis of the exchange, that he was prepared to proceed on the basis of the prosecution case alone and not to call evidence in the defence case.

24. [29]

    The transcript then recorded the following:

25. [30]

    The transcript continued.

26. [31]

    This was the conclusion of all submissions by the parties. It was clear at this point that:

    1. (1)

       The first respondent conceded that there was a prima facie case,

    2. (2)

       The first respondent was no longer pressing the defence of lawful correction pursuant to s 61AA of the Crimes Act;

    3. (3)

       The only issue left for the second respondent to determine was whether the defence of self-defence of another under s 418 had been made out. As to this:

27. [32]

    I note in passing that this concession by the prosecution in the Local Court that the first limb of s 418 was made out was possibly overly generous. The first limb of s 418(2)(a) requires that a person must “believe” that the “conduct is necessary to defend … another person”. Given that the first respondent stated that her reaction was “a big mistake”, a “reflex reaction” which she could “never undo”, that she was “mortified” and it was “never excusable”, it may be that the first limb was not necessarily made out on the evidence. However, given the prosecution’s concession, and the way the issue was framed, the issue squarely for the determination of the magistrate was, under s 418, whether the conduct “is a reasonable response in the circumstances as … she perceives them.”

28. [33]

    Notwithstanding this reservation, in the context of a busy Local Court list it is appropriate, indeed desirable, for the issues for determination to be narrowed in this way.

29. [34]

    It is appropriate to now set out in full the magistrate’s reasons and determination.

The proceedings in this Court

1. [35]

   The primary basis for the plaintiff’s appeal is pursuant s 56(1)(c) of the CAR Act. The appeal is as of right so long as it can be established that it involves a question of law alone. The plaintiff set out the relevant authorities in relation to the determination of this question.

2. [36]

   The amended summons, setting out the grounds of appeal pursuant to s 56(1)(c) of the CAR Act, contended that the second respondent erred in law by:

   1. (1)

      Failing to make findings of fact, because it is an aspect of the judicial duty to make and express findings, by reference to the evidence relied on by the prosecutor, as to why the Court is not satisfied beyond reasonable doubt of an accused person’s guilt, including why the prosecutor has not negatived a defence raised; and

   2. (2)

      Failing to provide adequate reasons for his decision to dismiss the charges, because the judicial duty to give reasons requires that the basis for the decision be revealed, including as to why the prosecutor has not negatived a defence raised.

3. [37]

   In oral submissions the plaintiff refined the question of law alone it contended is involved in this case:

4. [38]

   In support of this contended error of law alone, the plaintiff made submissions including that the second respondent made no reference to the charges or the legal elements of the offences before him, nor whether the plaintiff had established actual bodily harm for the purposes of s 59(1) of the Crimes Act and failed to refer to the photos showing the bruising on the complainant.

5. [39]

   The plaintiff further submitted, in relation to the “apparently determinative issue of self-defence of another”, the second respondent failed to:

   1. (1)

      Make findings critical to a determination that the prosecution had failed to negative the defence of self-defence of another beyond reasonable doubt; or

   2. (2)

      Failed to provide reasons in that respect.

6. [40]

   The plaintiff further contended that whilst the second respondent found that the first respondent had no “other alternative other than to instinctively act to protect a child”, in a situation where the evidence was in contest on these points, there were no findings set out as to:

   1. (1)

      What the complainant was actually doing at the time of the alleged offence;

   2. (2)

      Why his conduct was a threat to the other child; and

   3. (3)

      What the respondent’s perception was of the circumstances

7. [41]

   The plaintiff submitted that the evidence of the first respondent’s perception of the complainant’s actions was not clear. In the recorded conversation with police, she referred to the complainant “touching a part of his body” (presumably around his groin) and being “really close to another child”. She stated (a number of times) the conduct was “inappropriate” but also did not believe it was sexualised. At no point did the first respondent articulate a perception that the complainant was going to be violent towards another child. Nor did the first respondent articulate any concern similar to the example hypothesised by the second respondent, that the complainant was going to make contact with the other child’s eye. Rather, the first respondent stated she “didn’t have time to think about motive” and that her conduct was “completely unthought”. There was no evidence to indicate that the first respondent perceived the complainant was a danger to other children, or a “juvenile delinquent” in the words of the second respondent.

8. [42]

   The plaintiff also pointed to another factual issue not resolved by the second respondent which was important in order to be able to decide whether the striking of the complainant was a “reasonable response” for the purposes of s 418(2). The first respondent’s evidence was that she told the complainant to stop and only struck him after he failed to comply with that instruction, whereas the evidence of the complainant was that the first respondent only called out to him during the striking – that is, “[i]n the middle of the smack.” The plaintiff submits that the timing of the verbal response from the first respondent was in issue, and required a finding by the second respondent as part of his determination of reasonableness of response.

9. [43]

   The plaintiff also points to an absence of factual findings about the evidence of the complainant’s mother, which pointed to an issue as to whether the first respondent acted out of a particular frustration with the complainant. Relatedly, the first respondent’s conversation with police left open the possibility that the first respondent acted with “reflex … over reason” because she was stressed.

10. [44]

    The plaintiff contends that where there is an obligation to address a particular matter in the course of reasons, this will involve a question of law alone: JP v Director of Public Prosecutions (DPP) (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447 at [65] (Beech-Jones J).

11. [45]

    The first respondent noted that at the close of the prosecution case, the prosecutor accepted that defence of another had been raised and that the first limb of s 418 had been met in that “in the mind of [the first respondent] at the time, subjectively she has reacted in a way that she thought was appropriate.” Accordingly, “[t]herefore the sole issue in contention between the parties was whether the second limb of s418 had been negatived by the prosecution.”

12. [46]

    The first respondent contended that the complainant’s misbehaviour was believed by her to be that “the complainant had removed his penis and was holding it close to another child’s face.” The first respondent noted that no issue was taken that the injury sustained by the complainant amounted to actual bodily harm.

13. [47]

    The first respondent accepted that the failure of a judicial officer to give adequate reasons can constitute a question of law alone, and also pointed to the relevant authorities, noting that a preliminary question in the proceedings before this court is whether the issue for determination could properly be characterised in that way. It was contended that, whilst the reasons of the second respondent had obvious shortcoming on their face, the grounds of appeal were so closely related to the facts as to involve questions of mixed fact and law.

The law

1. [48]

   In Director of Public Prosecutions (NSW) v Swellings [2022] NSWSC 201, the relevant authorities were discussed by N Adams J at [56] including the following:

2. [49]

   Further, as stated in Shepherd v Nestoriadis [2015] NSWSC 348 at [36]-[40] (Beech-Jones J):

3. [50]

   As noted by the first respondent in her submissions, the question of adequacy of reasons must be seen in the context of the environment in which they are given, including whether the reasons are given ex tempore, and/or in a busy Magistrate’s Court with a heavy case load: see Acuthan v Coates (1986) 6 NSWLR 472 at 479, 485; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]; Neighbourhood Association DP 295386 v Forgeron [2005] NSWCA 150 at [15]; Colosimo v Director of Public Prosecutions (2005) 64 NSWLR 645; [2005] NSWSC 854 at [36].

Consideration of CAR Act ground

1. [51]

   The threshold question to be determined is whether the appeal involves a question of law alone. As stated above, a complaint that a judicial officer did not provide adequate reasons could involve a question of law alone if a question is posed in terms that are unrelated to the circumstances of the particular case but pose a question as to the content of that obligation of the judicial officer to address a particular matter. In my view, the question as set out in the passage extracted at [37] above, and as also expressed in [39] clearly involves a question of law alone. The question focusses on the obligation of the second respondent in this matter to isolate the particular elements of the defence which was to be determined, and to make factual findings in order to come to a proper determination. The question does not require the stating of any particular fact for that task to be properly understood. Further, as also contended by the plaintiff, it is necessary for the magistrate to give reasons for these critical findings.

2. [52]

   It was agreed between the parties that the sole issue for consideration by the second respondent at the Local Court was whether the second limb of s 418 had been negatived by the prosecution. In other words, was the conduct of the first respondent a “reasonable response in the circumstances as…she perceive[d] them”.

3. [53]

   In order for the second respondent to determine this question, it was necessary for the reasons to set out:

   1. (1)

      What were the circumstances as the first respondent perceived them;

   2. (2)

      What was her “response”; and

   3. (3)

      Was her response “reasonable” in those circumstances.

4. [54]

   When these questions are isolated in this fashion, and making every due allowance for the atmosphere of a busy Local Court list, it can be seen that the second respondent either failed to make these critical findings or if he did, he did not provide any reasons for them.

5. [55]

   For instance, the second respondent concluded that the first respondent had no “other alternative other than to instinctively act to protect a child”, but he failed to make a finding as to the circumstances as the first respondent perceived them at the relevant time. In other words, there was no clear finding as to what the first respondent perceived the complainant to be doing at the time of the alleged offence and why the complainant posed a risk of any type to the other child. Without such a finding, the second respondent could not assess what a reasonable response was in the perceived circumstance.

6. [56]

   Indeed, this failure to make such a finding was highlighted in the hearing before this Court where there was a clear contest between the parties as to what the evidence showed as to the first respondent’s perception of the events. The first respondent contended in this Court that the evidence showed that the first respondent perceived the complainant holding his penis near the face of another child. On the other hand, the plaintiff pointed to evidence indicating that the first respondent perceived the complainant holding a bunch of blocks simulating a penis, pointing it towards another child’s face. There was evidence that this was perceived by the first respondent as “inappropriate”, but also that it was “not sexualised”. There was no evidence that the first respondent perceived the conduct as potentially or actually violent or dangerous, or that the complainant constituted, in the first respondent’s eyes, a “juvenile delinquent” or “potentially a dangerous idiot”. For example, the first respondent expressed no concern, similar to the example hypothesised by the second respondent, that the complainant was going to make contact with the other child’s eye. Rather, the first respondent told the police officer that she “didn’t have time to think about motive” and that her conduct was “completely unthought”.

7. [57]

   There was also a clear unresolved factual dispute as to the timing of what was said to the complainant around the time of the alleged assault. Again, this factual issue was important for the determination of the question of the reasonableness of the first respondent’s response.

8. [58]

   The first respondent’s recollection was that she told the complainant to stop (whatever he was doing) and only struck him after he failed to comply with that instruction. On the other hand, the complainant said that the first respondent only said his name during the striking, that is, “[i]n the middle of the smack.” In order to determine the reasonableness of the first respondent’s action, it was necessary for the second respondent to make a finding about this factual dispute.

9. [59]

   These matters, at the very least, show that the second respondent failed to make relevant findings which were critical for assessing the reasonableness or otherwise of the first respondent’s actions. The second respondent’s reasons failed to address the elements of the second limb of s 418 and failed to reveal why the plaintiff failed to negative that defence. The decision of the second respondent was attended by error.

10. [60]

    As I have found the ground made out under the CAR Act, it is unnecessary to consider the remaining ground of judicial review.

11. [61]

    The deficiencies that have been identified in the second respondent’s reasoning as to whether the defence under s 418 has been negatived by the prosecution should not be taken to indicate which findings should in fact have been made. This is not a merits review. These matters have been identified in order to be able to properly consider and dispose of this appeal.

12. [62]

    Given the manner in which the proceedings were conducted, it is appropriate to remit the matter to the Local Court to be decided by a different magistrate according to law.

13. [63]

    At the hearing of the matter, the first respondent applied for indemnification under s 6 of the Suitors’ Fund Act 1951 (NSW). The plaintiff did not oppose the application. In my view, this is clearly an appropriate matter in which to grant an indemnity certificate.

Final observations

1. [64]

   It should be noted that it is entirely regrettable that the second respondent delivered his reasons using the emotive language and personalised examples that he did. It would appear that this matter resonated with the second respondent in an inappropriately emotional way and in a manner which appeared to cause him to stray from his judicial task of calmly assessing the evidence, making findings, making a judicial decision, and providing reasons in accordance with the dictates of his office and the rule of law. This is not to underestimate the pressures under which our magistrates operate with their heavy caseload and the parade of human difficulties which they face day in and day out. It is, however, important to emphasise that if a judicial officer feels that they are unable to dispassionately fulfil their role in relation to a particular matter or indeed at all, they should take appropriate steps to withdraw from the particular matter, or generally, and seek help and guidance which is readily available to them.

Orders

1. [65]

   The Court makes the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), the orders of Magistrate Clisdell made on 22 March 2022 at Queanbeyan Local Court dismissing proceedings against the first respondent for the offences of “assault occasioning actual bodily harm” contrary to s 59 of the Crimes Act 1900 (NSW) and “common assault” contrary to s 61 of the Crimes Act 1900 (NSW) (together “the matters”) be set aside.

   3. (3)

      The matters be remitted to the Local Court to be heard and determined according to law by a magistrate other than Magistrate Clisdell.

   4. (4)

      The Court grants an indemnity certificate to the first respondent pursuant to s 6 of the Suitors’ Fund Act 1951 (NSW).