Can You Smack Your Child in South Australia? Dewar Legal Acts in Supreme Court Appeal

Having been liberally smacked as a child and being none the worse for it, the writer is pleased to report that the answer is “yes” within certain common sense limitations.

Dewar Legal recently acted in a successful appeal to the Supreme Court of South Australia regarding the issue of parents smacking their children – Police v G,DM [2016] SASC 39. The matter received widespread local and national media coverage. For examples, see:

Our client – a distinguished member of the Australian military with an exemplary work record and no criminal history at all – was the father of a particularly difficult 12 year old boy. As a result of very poor behaviour (and having tried other means of discipline without success) our client smacked the child three times on the thigh. No bruising or injury was caused. Indeed shortly thereafter our client and the child discussed the incident (and the child’s misbehaviour) and put the matter behind them.

Unfortunately the child’s mother (who was separated from our client and promptly instigated family law proceedings seeking sole custody of the child without any rights of visitation for our client) marched the child off to a police station and reported the smacking incident. Our client was (ridiculously) charged with aggravated assault on his son. A reasonable observer could be forgiven for concluding that this was a classic example of the criminal justice system being used as a weapon in a family law matter and of the police and prosecuting authorities simply being too weak to prevent themselves from being used in this way.

We advised our client to plead “not guilty” on the basis that the smacking constituted reasonable parental correction of a child – a long-standing legal defence to a charge of assault.

A magistrate heard the evidence. The magistrate preferred the evidence of our client over the child and his mother. Despite this, our client was found guilty of aggravated assault on the basis that the smacking was unreasonable. Nevertheless, our client was discharged without conviction and without penalty – the magistrate had some sympathy for our client and noted that not every breach of the criminal law needs to result in charges being laid.

In our view the magistrate’s decision to find our client guilty was plainly wrong. We immediately appealed to the Supreme Court. Despite our client being dealt with “without conviction” the consequences for him would have been severe given his profession and future plans.

Our appeal was successful on all points. His Honour Justice Peek held that our client’s conduct in smacking his son was not unreasonable and was genuinely intended to correct the child’s misbehaviour.

While the media have referred to His Honour’s judgment as being a “landmark” decision, in reality it is simply a correction of the magistrate’s obvious error in applying a long-standing principle of law to the facts of this particular matter. In South Australia (as in most common law jurisdictions), it is not illegal to physically chastise a child as long as the chastisement is reasonable in all the circumstances and is genuinely intended as a disciplinary measure.

Negotiations in Criminal Matters in South Australia

At Dewar Legal we believe in resolving criminal matters by negotiation whenever possible. It is not the case that every criminal charge has to proceed to a stressful and expensive trial, the outcome of which is uncertain. We often negotiate with prosecution in order to have charges reduced or dropped completely.

The following table sets out examples from recent months in which we have successfully negotiated a good outcome for our clients:

Client Charge Outcome
H Assault Charge dropped following negotiations – problems with prosecution identification evidence
B Assault Charge dropped following negotiations – problems with prosecution theory of joint criminal enterprise
R Aggravated assault Charge dropped following negotiations – problems with prosecution identification evidence
E Stalking Charged dropped following negotiations – deal struck to enter into intervention order in exchange for dropping criminal charge
B Property damage Charge dropped following negotiations – deal struck for client to pay minor costs of damage in exchange for dropping charge
T Drink driving Charge dropped following negotiations – technical problems with breath analysis procedure
G Indecent assault Charge dropped following negotiations – credibility problems with complainant and not in the public interest to pursue the charge
P Assault Charge dropped following negotiations – deal struck to enter into intervention order in exchange for assault charge being dropped
E Assault causing harm Charge dropped following negotiations – problems with credibility of complainant, lack of corroborating evidence
N Blackmail, Indecent Filming Charge dropped following negotiations – deal struck to enter into intervention order and consent to the destruction of certain electronic storage media in exchange for withdrawal of charge
K Property damage; Assault police; Refusing to give name to police All charges dropped following negotiations – deal struck to pay costs of minor damage in exchange for withdrawal of charge
R Cultivation of cannabis intending to sell Charge dropped following negotiations – prosecution evidence insufficient to link client to offending
P Indecent assault Charge dropped following negotiations – problems with credibility of complainant

Negotiations should be conducted carefully and only via a lawyer. Engaging in negotiations can be risky. For example, the negotiations may not succeed and you may achieve nothing except for tipping the prosecution off about your defence, allowing them to more fully prepare their case against you or to plug holes by obtaining new evidence. Negotiations with prosecution should be conducted carefully and with the benefit of full legal advice. Some matters are simply not suitable for negotiation.

If you have been charged with a criminal offence, call Dewar Legal on (08) 8311 3964 or contact us by clicking here. We offer a free first interview and payment plans. We can help you apply for Legal Aid.

Fixed Fees in Criminal Law Matters in SA

crim2At Dewar Legal we understand the stress associated with criminal law matters. We also understand that you may be apprehensive about the cost that is commonly associated with hiring a lawyer. We are committed to offering funding models that suit all types of legal matters.

We are happy to act in criminal law matters that are funded by Legal Aid. We can help you apply for Legal Aid.

If you are not eligible for Legal Aid Dewar Legal can offer you “fixed fee” arrangements that will leave you knowing precisely how much you will be paying for your entire legal matter.

If you are in South Australia and need a criminal lawyer, please feel free to contact Dewar Legal today. We can offer you a free, no-obligation interview. We will discuss your matter with you, give you some preliminary advice, and discuss our fees with you. If you decide you do not want to proceed, you will not be charged anything. In all cases, we make full written disclosure to you about our fees.

Please call us on (08) 8311 3964 to arrange a free interview today.

Dewar Legal Office Relocation

We are pleased to announce that as of 28 July 2015 Dewar Legal will be operating from our new offices at Level 5, 22 Grenfell Street (corner of Grenfell Street and James Place).

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You may know 22 Grenfell Street as the heritage-listed Executor Trustee & Agency Co Building. In addition to much-needed space, our new office provides useful features such as a fireproof strongroom for the safe storage of wills and other important legal documents.

All other contact details will remain the same.