The NSW Supreme Court has overturned a magistrate's dismissal of an assault charge against a teacher after he used "regrettable" emotive language in his decision, including lamenting "the insanity that has overtaken society".
The case of the teacher, Emma Tiller, was heard last March in Queanbeyan Local Court, after she was accused of striking a seven-year-old boy on his shoulder in a primary school class.
One day when the students were packing up, Ms Tiller saw the complainant pick up several patterned blocks and hold them in front of his pants, close to the face of another child who was sitting in front of him.
Ms Tiller described a "reflex action", involving her yelling out for him to stop, before she "pushed his arm away from behind", not thinking about the speed or contact.
She said she "instantaneously" knew it was inappropriate and took the boy outside to apologise, where he began to cry.
The prosecution argued the conduct went beyond the self-defence of another person.
The Director of Public Prosecutions (DPP) appealed the decision of Magistrate Roger Clisdell, who began delivering his reasons by telling the court that he wished he could sue all his primary school teachers.
"This is a classic case of the insanity that has overtaken society in the 21st century, it started in the 1980's 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," he said, according to a transcript reproduced in the appeal judgement.
The magistrate said the defendant lost her job despite being a dedicated, organised and well-meaning teacher.
He told the court his daughter lasted a year as a teacher before having a nervous breakdown, while a boarding school friend quit teaching after having accusations made against him in relation to a student.
"The insanity of allowing lunatics to run an asylum has become endemic in our society and the courts cop criticism all the time because we don't stand up for what people see as proper values," Magistrate Clisdell continued.
He said "technically laying hands on someone is an assault", but that the child had "behavioural problems" and was a "constant nuisance".
At a later point, the magistrate said: "Now, either we wake up as a society and start putting the adults back in charge, rather than the juveniles or our society will go the way of the roman empire, it will collapse."
The DPP argued the magistrate failed to make findings of fact and failed to provide adequate reasons.
In the Supreme Court, Justice Sarah McNaughton set aside the decision and ordered the case return the Local Court before another magistrate.
In a written judgement, she described as "entirely regrettable" the use of "emotive language and personalised examples".
The matter appeared to have resonated in an "inappropriate emotional way" which caused the magistrate to "stray from his judicial task".
"This is not to underestimate the pressures under which our magistrates operate with their heavy caseload and the parade of human difficulties which they face day in and day out," the judge said.
"It is, however, important to emphasise that if a judicial officer feels that they are unable to dispassionately fulfil their role in relation to a particular matter or indeed at all, they should take appropriate steps to withdraw from the particular matter, or generally, and seek help and guidance which is readily available to them."
