Assault conviction appeal fails

Press, 3 November 1978, Page 5

Assault conviction appeal fails

Thecourts

A man who forced the two-year-old son of a solo mother he visited regularly, to eat his own excreta, had his appeal against a conviction on a charge of assaulting the boy dismissed by Mr Justice Roper in the Supreme Court yesterday.

The man, whose name was suppressed for reasons which are not clear, was fined $lOO by Mr B. A. Palmer, S.M., in tne Magistrate’s Court aner a defended hearing. His Honour said that it was fortunate for the man he had not appealed agains't the sentence.

Mr D. C. Fitzgibbon appeared for accused and Mr G. K. Pankhurst for the Crown.

Evidence was given at the hearing in the Magistrate’s Court that the boy, the son of a woman with two children, had been admitted to Christchurch Hospital suffering from injuries which appeared to have been deliberately inflicted. There were burns and blisters over the top half of his body and there were bruises on his thighs and buttocks.

The mother said that after the child had soiled himself the accused had taken him away to clean up. When the child was returned to her he was in a distressed condition. His head was wet and he had smears of faeces on his face and some was coming from his mouth and running down his chin. She alleged that accused told her that he had belted the child, rubbed his nose in the faeces, put some in his mouth and held his head in the toilet bowl while it was flushed.

The Magistrate found that accused assaulted the child but it was restricted to “the grossly unpleasant and wholly unjustifiable placing of a piece of excreta in the child’s mouth in circumstances where force was used.”

Mr Fitzgibbon said that the appeal centred on one nar-

row issue. He accepted that the accused had assaulted the child, but submitted that it was not a criminal assault but a reasonable form of chastisement or correction. On a number of occasions the child had spread its excreta around and had almost driven its mother to a nervous breakdown. When he was four years old the accused had received exactly the same treatment — the! placing of excreta in his mouth — and that had cured! him. Psychiatrists regarded the spreading around of excreta by a child was a form of rebellion. The child was making a form of protest and was getting its own back, Mr Fitzgibbon said. Mr Pankhurst said that the force used in correcting a child had to be reasonable. It was significant that in this case the person charged was not a natural parent but merely a regular visitor to the house. Counsel said that he endorsed the Magistrate’s view when he said: “I have reached a firm conclusion in relation to this particular act. Unhesitatingly I conclude that this comprises a criminal assault. There could, in my view, be no legal justification for a parent treating a child of this age and disposition in that particular way. Such behaviour patently exceeds any form of acceptable parental discipline.” “This rather mind-boggling appeal is against conviction

on a charge of assault on a child, two and a half years old,” his Honour said. “Various allegations were made against accused in the lower court, namely that he had struck the child causing b.uises and that he had been responsible for it being deliberately scalded.”

TF.' Magistrate had found that those matters had not been proved beyond a reasonable doubt. However,

what he had found proven was the charge of assault, in i his words “the grossly un-| pleasant and wholly un-j justified placing of a piece ot excreta in the cnild’s mouth in circumstances where force was used.” Although it had been sug-; gested in evidence by ac-| cused that this was his| means of curing the little) boy of dirtying his pants, he noted from accused’s own I statement that he had said I he was pretty wild with the boy at the time he did that, i Mr Fitzgibbon accepted that it was an assault on the little boy but not a criminal assault. He relied on section 59 of the Crimes act which provided in short that a parent, or one in a position of a parent, as was accused, was entitled to use reasonable force by way of correction. What was reasonable was a question of fact. Any parent, or one standing in place of a parent, might administer moderate chastisement, but if it exceeded the bounds of moderation either in the manner, the instrument or the quality of the punishment, then that parent could be liable in law. “As Mr Pankhurst has pointed out, the child must be of an age when it is capable of appreciating the means of correction, and the chastisement must have some relationship to age and development of the child,” said his Honour. “It has been said that physical correction of an unusual kind may be unreasonable, and it would be difficult to envisage more unusual punishment than this,” his Honour said. He accepted the Magistrate’s conclusion that this was a criminal assault and

his view that there was no legal justification for accused treating the child in this way.