Magistrates Must Base Their Decisions on the Law, Not Emotion

By Paul Gregoire and Ugur Nedim

NSW schoolteacher Emma Tiller was having difficulty with a year 2 student in the class she’d been assigned to teach over 2021. And whilst it was her second year teaching this class, an 8-year-old boy she was having difficulty with was new to the school.

In March, Tiller was still trying to work out whether the student needed help because he didn’t understand or whether he knew what was expected of him but was refusing to comply. So, the “fairly new teacher” with “a lack of experience” called the boy’s mother to explain the situation.

On the day following the call, as students in the classroom were packing up some blocks, Tiller noticed the boy in question holding a bunch of them in his hand close to his crotch and another child’s face. And the teacher responded with a “reflex action” conveying “that’s not appropriate”.

This action saw Tiller push the boy’s arm away from behind in an effort to stop him holding the blocks in front of the other student’s face. She then ordered the boy into the hallway, calmed the rest of the class, and checked on him, asking if he was okay and apologising for her actions.

After the boy was picked up by his sister, Tiller proceeded to go to her supervisor’s office and explain her actions, which she described as “a really big mistake” of which she was “mortified”, adding that there was never an excuse for such conduct, especially in a school setting.

The good old days

On 22 March last year, Tiller appeared before Queanbeyan Local Court on two charges. The first was one count of assault occasioning actual bodily harm, contrary to section 59 of the Crimes Act 1900 (NSW). This offence carries up to 5 years imprisonment when undertaken alone, or 7 years if committed with another person or persons.

The second charge consisted of one count of common assault, contrary to section 61 of the Crimes Act. Being convicted of this crime can see an individual spending up to 2 years inside.

Questions arose around whether the smacked boy knowingly made a “sexualised” gesture at the time his teacher struck him, and the defence argued the position that Tiller was acting in self-defence, however it was then determined this didn’t apply.

“Gee I wish I could go back and sue all my teachers from primary school,” said Magistrate Roger Clisdell, on reading out his findings.

“This is a classic case of the insanity that has overtaken society in the 21st century, it started in the 1980s 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.”

His Honour went on to sympathise with Tiller and the situation she’d found herself in. And he further lamented the changes in the system that have occurred in terms of preventing teachers from physically disciplining students over recent decades.

The magistrate dismissed the mother’s recollection of her discussion with Tiller on the phone, and he decried the laws that now govern all aspects of life. His Honour said it was “a big ask” to consider the teacher’s actions an assault, as she was dealing with a “juvenile delinquent”.

Magistrate Clisdell didn’t accept that a “slap on the shoulder” amounted to “inappropriate or unreasonable force”, and he dismissed the charges against Tiller, finding her not guilty and further revoking an apprehended violence order (AVO) issued against her name.

An error of law  

The NSW Director of Public Prosecutions (DPP) appealed the decision to dismiss the case to the NSW Supreme Court on 3 November 2022, based on an error of law, involving the magistrate not having provided adequate reasons, specifically as to why the prosecutor hadn’t negatived self-defence.

The DPP added that the magistrate hadn’t shown how the defence of self-defence wasn’t negatived or else hadn’t provided the reasons for it, while there was a dearth of evidence to support an assertion that there was no “other alternative other than to instinctively act to protect the child”.

Section 418 of the Crimes Act contains the defence of self-defence, and being applied in this case, it was argued that Tiller was “not criminally responsible”, as her conduct sought to defend another person and it was a reasonable response due to how she perceived the circumstances.

Supreme Court Justice Sarah McNaughton set out that it is indeed necessary for a judicial officer to provide reasons to dismiss a defence, and that in this case, the argument was that Magistrate Clisdell had failed to explain how Tiller’s response was reasonable given the circumstances.

Acting responsibly

Her Honour added that the question as to whether Tiller acted reasonably involves three steps: what were the circumstances that she perceived, what was her response and was that response reasonable given the circumstances.

Justice McNaughton explained it was clear that adequate reasons around these questions hadn’t been provided, as, when considering the magistrate’s determination that Tiller had no alternative other than to act as she did, he failed to determine the circumstances of which he was referring to.

Indeed, as the justice set out, without thoroughly defining the circumstances surrounding the incident and the manner in which Tiller perceived them, it is impossible to then determine whether she’d acted reasonably.

And her Honour found this ground of appeal was made out.

An overly emotional response

Justice McNaughton explained that her finding the appeal was upheld does not simply result in the correct outcome of the case, rather it now had to be remitted to the NSW Local Court, so that it can be reconsidered.

Her Honour added it appeared that the case resonated with the magistrate 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”.

And on 9 March this year, Justice McNaughton ordered that the March 2022 determination to dismiss the case be set aside, and it be remitted to the NSW Local Court to be reheard by a magistrate other than Clisdell.