Defence Of Lawful Correction (NSW)

Where a parent (or person acting for a parent) has been charged with an offence that involves applying physical force against their child and did apply such force for the purpose of punishing the child, they may be able to rely on the defence of ‘lawful correction’. This defence is only available to persons defined as a ‘parent’ or a ‘person acting for a parent’ against a child for an offence that involves the application of physical force such as common assault or assault occasioning actual bodily harm. 

How Offences Are Proven:

In order for a person to be found guilty of any offence, the Prosecution must prove every element of the offence to the standard of beyond a reasonable doubt. 

The ‘elements’ of an offence are the ingredients that make up the offence. All offences contain physical elements (such as driving a motor vehicle, hitting or slapping another person, or being in possession of a drug) and mental or ‘fault’ elements (such as intent, recklessness or knowledge). When the Prosecution is unable to prove each and every element of the offence to the standard of beyond a reasonable doubt, the person charged should be found not guilty.

Even if the Prosecution can satisfy all the elements of an offence to the standard of beyond reasonable doubt, the person charged may raise a defence to the charge which, if accepted, means they are not criminally liable and therefore not guilty of the offence. 

The Legislation:

Section 61AA of the Crimes Act 1900 creates the legislative defence of lawful correction. 

Definitions:

The Act prescribes that the defence of lawful correction is only available to a ‘parent’ or a ‘person acting for a parent’ against a ‘child’. These terms are defined under Section 61AA. 

“Child” means a person under 18 years of age. 

“Parent” is defined to mean a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children.

“Person Acting For a Parent” means a person who is the step-parent of the child, a de facto partner of the parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and is authorized by a parent to use physical force to punish the child. The Act further includes a provision specific to Aboriginal and Torres Straight Islander people as including a person recognized by the Aboriginal or Torres Strait Islander Community to which the child belongs as being an appropriate person to exercise responsibility in relation to the child. 

Onus of Proof:

The accused bears the onus (responsibility) of raising the defence of lawful correction and of satisfying the Court that they were lawfully correcting the child to the standard of the balance of probabilities. This means that the accused must present evidence to the Court and convince the Court that it was more likely than not that their actions were performed to lawfully correct the child. 

 Once the defence of lawful correction is raised by the accused, the Prosecution can dispute the defence by cross-examining or testing the Defendant’s evidence. This may involve the Prosecution challenging one of the elements of the defence such as that the person was not a ‘parent’ nor ‘person acting for a parent’ or that the application of physical force was not reasonable. 

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