The foster parents of the young boy whose disappearance in 2014 has captivated the nation, exposed the shady operations of senior police officers, ruined the lives of innocent people through false accusations and cost the public millions in compensation and legal cost payouts for malicious prosecution, are in court this week facing a defended hearings over allegations of assaulting and intimidating a different child.
The story so far
The abuse is alleged to have occurred on Sydney's North Shore between November 2020 and October 2021.
Reports of the alleged incidents led to two charges of common assault and two of stalking or intimidation with intent to cause physical or mental harm being brought against the 58-year old woman, and one count each of common assault and stalking or intimidation being brought against the 56-year old man.
The pair initially pleaded not guilty to all charges and the case was listed for a 5-day defended hearing in Parramatta Local Court commencing on Monday, 4 September 2023.
On the first day of hearing, the woman pleaded guilty to the two assault charges that occurred between January and October 2021, but not guilty to the two intimidation charges which are alleged to relate to incidents between January and August in the same year.
The man maintained his pleas of not guilty to all charges, which are alleged to have occurred in November 2020 and October 2021.
The couple and the child cannot be identified for legal reasons.
The hearing continues.
The offence of common assault
A common assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence, or strikes, touches or applies force to another, without legal justification. It cannot be a mere omission.
There does not need to be an intention or power to use violence; it is enough for the other person to believe on reasonable grounds that there is an imminent danger of it.
It is an offence under section 61 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years in prison and/or a fine of $5,500.
To establish the offence, the prosecution must prove beyond a reasonable doubt that:
- The defendant committed an act which caused another to apprehend immediate and unlawful violence, or struck, touched or applied force to the other person,
- The other person did not consent to the conduct, and
- The conduct was intentional or reckless.
The defendant must be acquitted if the prosecution is unable to prove any of these elements to the required standard.
Examples of common assault
The following types of conduct may amount to a common assault:
- Striking another person without causing any, or any significant, injuries,
- Threatening immediate violence in such a way the other person believes the threat will be carried through; for example, saying 'I'm gonna punch you in the face' while raising a fist and/or moving towards the other person and/or displaying a threatening or angry demeanour,
- Striking at a person with a fist or object, whether or not contact is made,
- Throwing an object towards a person, whether or not contact is made,
- Spitting at another person, whether or not contact is made, and
- Pushing an animal or other conveyance that the other person is on and thereby causing the other person to fall off.
The offence of stalking or intimidation
Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 prescribes a maximum penalty of 5 years in prison and/or a fine of $5,500 for any person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm.
For the purposes of the section:
- causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship,
- a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person,
- the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm, and
- an attempt to commit the offence is enough to establish the offence.
' Intimidation' is defined by section 7 of the Act as:
- conduct (including cyberbullying) amounting to harassment or molestation of the person,
- an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
- any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
The court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour when determining whether conduct amounts to intimidation.
'Stalking' is defined by section 8 of the Act as including:
- the following of a person about,
- the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity, and
- contacting or otherwise approaching a person using the internet or any other technologically assisted means.
Again, the court can consider any pattern of violence when determining whether conduct amounts to stalking.
A person with who there is a 'domestic relationship' is someone who:
- is or has been married to the other person,
- is or has been a de facto partner of that other person,
- has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature,
- is living or has lived in the same household as the other person,
- is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre or detention centre),
- has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person,
- is or has been a relative of the other person, or
- in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person's culture.
Legal defences
Various legal defences apply to both common assault and stalking or intimidation charges, including self-defence, duress, necessity and the lawful correction of a minor.
The legal defence of lawful correction of a minor
While smacking and manhandling children is generally frowned upon throughout our western society, parents and guardians are entitled to use reasonable force to physically discipline children.
This is known as the 'defence of lawful correction'
Lawful correction is a complete defence to a criminal charge, which means it leads to a verdict of 'not guilty'.
The defence is contained in section 61AA of the Crimes Act 1900 which states that you are not criminally responsible for an offence arising from applying physical force to a child if:
- You were the child's parent or were acting for the child's parent,
- You applied force to punish the child, and
- The force was reasonable.
A 'child' is a person under the age of 18 years.
A person 'acting for a parent' is:
- The child's step-parent, or the parent's de-facto partner or relative, or a person to whom the parent has entrusted the child's care, and
- Who the parent authorises to use physical force to punish the child.
In the case of Indigenous persons, a person acting for a parent includes a person recognised by the Indigenous community as having special responsibilities towards the child.
The factors relevant for determining whether the force was 'reasonable' are:
- The child's age, health, maturity and other characteristics,
- The nature of the alleged misbehaviour, and
- Any other relevant circumstances.
Physical force that is more than trivial or negligible is not reasonable where applied to:
- The child's head or neck, or
- Any other part of the child where the harm is likely to last more than a short period of time.
William's disappearance remains a mystery
In July this year, New South Wales detectives investigating William's disappearance handed a brief of evidence file to the Office of the Director of Public Prosecutions recommending that criminal charges be brought against William's foster mother.
Charges have not been brought as of yet and, of course, the search for William continues.
William disappeared on 12 September 2014 from a property belonging to his foster grandmother at Kendall, on the New South Wales mid-coast, when he was just three years old.
Much controversy has surrounded the police investigation, and there has also been a lot of criticism about the way that it has been handled over the years.
William's foster mother was charged with knowingly giving false or misleading evidence to the New South Wales Crime Commission, which was investigating William's disappearance in 2021, but was found not guilty of the charge in 2022.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
