Supreme Court Overrules Magistrate’s ‘Emotional’ Decision

The NSW Supreme Court has overturned a Local Court Magistrate’s decision to dismiss assault charges and an apprehended violence order brought against a school teacher for striking an unruly student, as he was found to have based his decision on emotion rather than the law.

The story

Let’s take a step back to the early afternoon of Tuesday, 9 March 2021, when school teacher Emma Tiller was instructing a class of Year 2 students.

Just before the school day’s end, one of her students, a 7-year old boy who was new to the school, was collecting pattern blocks from the floor and putting them in a box when he took a number of them, fashioned them in front of his crotch in the shape of male genitals and waved them “really close” to another child’s face.

Ms Tiller “yelled at” the boy to stop and advised him “that’s inappropriate”, but when the child did not comply she then shoved his left shoulder from behind “in a reflex action”.

The children continued to pack items away and, before the teacher took the boy aside “a couple of minutes” later and apologised for her actions.

The incident later came to the attention of the school’s administrators and was reported to the police.

The charges

Ms Tiller was ultimately charged with assault occasioning actual bodily harm (AOABH) and an alternative count of common assault over her conduct.

AOABH is an offence under section 59 of the Crimes Act 1900 (NSW) which carries a maximum penalty of five years in prison.

Common assault is an offence under section 61 of the Crimes Act 1900 which carries a maximum penalty of 2 years in prison.

The basis for the AOABH charge is unclear as there does not appear to be any evidence of actual harm to the child, or at least no more harm than is ‘transient or trifling’ as required to establish the charge.

An application for an apprehended violence order (AVO) was also made against the teacher for the protection of the boy, and her position as a teacher at the school was terminated.

She pleaded not guilty to the charges and opposed the AVO, and the matter eventually came before Magistrate Roger Clisdell in Queanbeyan Local Court.

The defences

Ms Ellis’ criminal defence lawyers argued in court that their client should be found not guilty as she was acting:

1. In ‘third party self-defence’, specifically in defence of the child in the face of whom the complainant was waving the blocks, and/or
2. In lawful correction of a minor.

It is important to be aware that where evidence of either defence is raised in court, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply in the circumstances.

The defendant must be found not guilty if the prosecution is unable to discharge this onus.

Third party self-defence

The law relating to self-defence is contained in section 418 of the Crimes Act 1900 (NSW).

The section states that a person is not criminally responsible for their actions if he or she believes they were carried out in self-defence, and the conduct is a reasonable response in the circumstances as he or she perceives them.

Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.

The defence is available where the conduct is necessary to:

(a) defend himself or herself or another person, or

(b) prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) protect property from unlawful taking, destruction, damage or interference, or

(d) prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

This extends to the situation where a person steps in to defend another person against an assault.

However, section 420 of the Act makes clear that self-defence is not available where a person uses force that involves the intentional or reckless infliction of death only to protect property or prevent a trespass.

And section 421 provides that where a person uses excessive force to defend themselves or another, including to prevent the unlawful deprivation of liberty, and that force results in their target’s death, the person will be criminally responsible for manslaughter rather than murder provided that he or she believed the conduct was necessary in the circumstances.

Lawful correction of a minor 

The defence of lawful correction is contained in section 61AA of the Crimes Act 1900 (NSW) which states that you are not criminally responsible for an offence arising from applying physical force to a child if:

1. You were the child’s parent or were acting for the child’s parent,
2. You applied force to punish the child, and
3. The force was reasonable.

A ‘child’ is a person under the age of 18 years.

A person ‘acting for a parent’ is:

1. The child’s step-parent, or the parent’s de-facto partner or relative, or a person to whom the parent has entrusted the child’s care, and
2. Who the parent authorises to use physical force to punish the child.

In the case of Indigenous persons, a person acting for a parent includes a person recognised by the Indigenous community as having special responsibilities towards the child.

The factors relevant for determining whether the force was ‘reasonable’ are:

1. The child’s age, health, maturity and other characteristics,
2. The nature of the alleged misbehaviour, and
3. Any other relevant circumstances.

Physical force that is more than trivial or negligible is not reasonable where applied to:

1. The child’s head or neck, or
2. Any other part of the child where the harm is likely to last more than a short period of time.

The judgement

While it appeared one or both defences may have applied in the circumstances of the case, the evidently frustrated Presiding Magistrate instead went on the following rant:

“Gee I wish I could go back and sue all my teachers from primary school. This is a classic case of the insanity that has overtaken society in the 21st century, it started in the 1980’s when we advised students that they had rights, and we took away the control and power of, firstly parents then teachers, then the police, and even the courts.

So, what do I get in court on a regular basis, I get people from a generation who never experienced discipline at school and never had [a] report saying they’d failed, who never came last in a race, come in here and there studious t-shirt and thongs, and say, ‘What ya want mate?’. Is that how we want our society..(not transcribable)..police are treated with absolute contempt every day of the week every time they’re on duty, they’re called. ‘White effing C’s, they’re called black effing C’s, they’re called everything under the sun. Who would be a schoolteacher, my daughter lasted [a] year as a schoolteacher and gave it away, had a nervous breakdown, who would be a schoolteacher today?

[The first respondent] lost her job. It seems we had a fantastic primary school teacher, dedicated, organised, well meaning, and she’s sacked. One of my former school mates who I’m still mates with from boarding school nearly 50 years later, was a schoolteacher in primary school, a male, one of those extinct species in primary schools, who was the only male teacher in the school, so whenever there was a discipline problem, he was called in to sort out the class. One day a kid raising across the asphalt slips and falls, he runs over picks up the kid’s – comforts it, and has a complaint made that he was sexually assaulting the kid. It never went anywhere but he quit. This is what is happening with our world today. Now let’s go to the, let’s start with [Ms L]. I have never heard anything as stupid and unbelievable as a teacher ringing a [parent] and saying, ‘I’m picking on your kid’, that did not happen, I don’t accept it for a moment. What I do accept that was probably said, was that either, ‘I don’t want you to be concerned that I’m picking’, or ‘I’m concerned that I might be seen as picking on him because I’m always having to call him out’.

We all know the kid that wants attention in the classroom and the fact that he didn’t play up in kindergarten in first class, just means that he got a little bit older and a little bit more bold when he got into second class. I never got into trouble in kindergarten and first class, did get into trouble in second class.

The insanity of allowing lunatics to run an asylum has become endemic in our society and the courts cop criticism all the time because we don’t stand up for what people see as proper values. One of the problems we’ve got is 3,000,000 pieces of legislation that control every breathing moment of our lives and whether you walk down the street in the wrong direction, or that you don’t use your indicator in your car as you leave a roundabout, whether you cough inappropriately, whether you pick your nose in public, the whole world has gone completely and totally insane and it frustrates the hell out of me that I sit here and I have people as I did today, that I could not give bail to because there are not facilities to look after someone who’s schizophrenic and is a kleptomaniac, that is he just goes and helps himself to other people’s property. Not because he wants to do it, but he’s compelled to do it and the only way I can protect – eventually members of the public, and commercial enterprises, is by refusing him bail.

So, I’ve locked up a person today who is mentally unwell, now I’m asked to convict a teacher of assaulting an eight-year-old juvenile delinquent, which is the way he was behaving, and his mother gives me no thought that she was anything other..(not transcribable)..to him as well. His interview was impressive for the fact that he gave every buzz word available, scared, terrified. I can remember going into classrooms where I wasn’t very happy about facing the teacher involved, where it made me keep my head down. You needed to keep your head down cause one of those teachers used to chuck the blackboard duster at you, and I’m glad from that sort of teacher’s behaviour but to equate what [the first respondent] did in this situation, with it being an assault is a big ask.

Technically laying hands on someone is an assault. What do we have here we have a child who has behavioural problems in the classroom, a child who was a constant nuisance and we know he’s a constant nuisance cause even his school friends were saying, ‘Ooh, you got rid of [the first respondent]’, they weren’t very happy with him either? He is being an idiot, but potentially a dangerous idiot because the kids are down on their hands and knees picking up block[s] and things from the floor of the classroom and he’s standing with a pile of blocks in his hand, at his groin, 15 centimetres away from the face of another student on the ground.

Let’s assume for a minute that [the first respondent] played the Sergeant Schultz, what if that child on the ground had lost an eye who would have been responsible, guess what, it would have been [the first respondent]. She’d have been the one responsible for what happened because she didn’t properly control her classroom. Just last week we have the newspapers reporting that there is thousands – not hundreds, thousands of teachers leaving the New South Wales teaching profession because of violence in the classroom and we’re only talking here about primary school, we’re not talking about the knives and guns that come in the class in secondary school, we’re talking about eight-, nine- and ten-year old’s assaulting teachers who are not allowed to do anything in response.

Now, either we wake up as a society and start putting the adults back in charge, rather than the juveniles or our society will go the way of the roman empire, it will collapse. If you haven’t read Edward Gibbons ‘Rise and Fall of the Roman Empire’, then I recommend that you try to find a copy in a library somewhere. It’s been out of print for about 80 years, but it details – when I was a history student, which is why I’m saying this – … but it details why the roman empire collapsed. And guess what, western society is following it chapter and verse 2000 years later, 1600 probably, but close enough.

So, I don’t accept that [the first respondent] rang [Ms L] and said, ‘I’m picking on your son’, and I don’t accept that she had any other alternative other than to instinctively act to protect a child in the circumstances in which she did, and I accept that a slap to the shoulder is hardly what one would call inappropriate and unreasonable force. If she’d slapped him on the head she would have been in big trouble, but she didn’t. If she’d grabbed him by the wrist or something and pulled him that would have been acceptable as well, she honestly said, ‘I acted instinctively’, she self-reported and the end result is that the education department has removed her from her role as a teacher.

Shame on the education department because they are setting a ‘bar’ which is impossible to meet and if they end up with no teachers it’ll be their own fault. THE MATTER IS DISMISSED, NOT GUILTY. THE AVO IS DISMISSED.”

The appeal

Evidently in short, the judgement was based on emotion rather than an application of the law – including the available defences – to the evidence before the court.

The Office of the Director Public Prosecutions (DPP) appealed the decision to the Supreme Court of New South Wales (NSWCCA) on that basis.

The matter came before her Honour Justice Sarah McNaughton who, on 9 March 2023, delivered a judgement describing the lower court’s dealings as “entirely regrettable”, finding that the matter was dealt with in an “inappropriate emotional way” and which saw the Magistrate “stray from his judicial task”.

Her Honour qualified her criticism by remarking:

“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 fulfill 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.”

Justice McNaughton upheld the DPP’s appeal and referred the case back to the Local Court for determination by another Magistrate.

This means Ms Ellis will go through additional stress and likely expend further financial resources in an effort to achieve a just outcome according to the law.