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A NSW teacher will be facing court for a second time after the dismissal of her charges for common assault and assault occasioning actual bodily harm over a shove to a student were overturned on appeal.

Here’s what you need to know.

Further, here is more on lawful correction and whether it is illegal to smack your child.

The Case

The incident which led the charges occurred when primary school teacher Emma Tiller was teaching a Year 2 class including the complainant, who was seven years old at the time.

The complainant was known for being disruptive in class and Ms Tiller had spoken to the complainant’s mother a day prior over her son’s behaviour.

On 9 March 2021, towards the end of the school day, the complainant was in class and held a group of pattern blocks in front his pants which he faced towards another child’s face.

Ms Tiller gave evidence that from her view she instantly assumed that the complainant had taken out his penis and was putting it towards another child’s face. In response, she yelled that it was not appropriate and, not receiving a response, then smacked his arm away from behind.

Describing her conduct, Ms Tiller stated:

I acknowledge that, that my reflection on this incident is I am far more stressed than I actually thought I was. … I thought I was handling it really well. And obviously, probably not, if I, you know, if reflex rules over reason. … It was a complete reflex.

The smack left a bruise on the complainant’s arm and was subsequently reported to police. Ms Tiller was promptly fired due to her conduct.

Ms Tiller put forward during her contested hearing before Magistrate Clisdell that her actions were in defence of another, giving rise to a formal defence of self-defence under s418 of the Crimes Act 1900 (NSW).

However, the Magistrate dismissed the charges without acknowledging whether a formal defence had been established. The Magistrate gave several highly inappropriate statements as part of their reasons, including:

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.

As well as disparaging remarks towards the complainant:

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…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.

On appeal to the Supreme Court of NSW the original decision was overturned and the matter was remitted to the Local Court to heard again. In overturning the Magistrates decision, the Court noted:

[I]t is entirely regrettable that the [the Magistrate] delivered his reasons using the emotive language and personalised examples that he did. It would appear that this matter resonated with [him] 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. 

Self Defence and Defence Of Another

Ms Tiller’s case at a contested hearing was that she was acting in defence of another at the time she smacked the complainant.

The law of self-defence is outlined in s418 of the Crimes Act 1900 (NSW) which states that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

A person carries out conduct in self-defence if they believe their conduct is necessary:

  • To defend himself or herself or another person, or
  • To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
  • To protect property from unlawful taking, destruction, damage or interference, or
  • To prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

Their conduct must also be a reasonable response in the circumstances as he or she perceives them.

Determining whether a person believes their conduct is necessary is a subjective test, requiring a determination of what they thought at the time.

However, determining whether the conduct constitutes a “reasonable response” is an objective test from a reasonable person’s perspective, but can take into account what the person perceived at the time.

Lawful Correction

Section 61AA of the Crimes Act 1900 (NSW) provides a defence for criminal proceedings against a person arising out of the application of physical force to a child, if the force was applied for the purpose of the punishment of the child.

The defence will only apply if:

  • The physical force was applied by the parent of the child or by a person acting for a parent of the child, and
  • The application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.

A “person acting for a parent” can include a teacher but requires express authorisation by the parent of the child to use physical force to punish the child. This defence was not open to Ms Tiller as she did not have consent from the complainant’s parent to use physical force.

The use of physical force will not be reasonable if force is applied:

  • To any part of the head or neck of the child, or
  • To any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.

 

Other potential defences

Other defences that may be available if a teacher uses physical force against a student:

  • Automatism: whether the person’s actions were completely involuntary, such as during an epileptic fit or where a person “blacks out” due to trauma.
  • Necessity: where under extreme and unusual circumstances the use of physical force is necessary to avoid imminent danger.
  • Duress: where the teacher is forced to do something in fear of serious harm or death.

By Jarryd Bartle.

Published on 31/03/2023

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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