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District Court 3 December 2015

Anthony John Matus v R

[2015] NSWDC 292

Assault & violence
COMMON ASSAULT

Citation: Anthony John Matus v R [2015] NSWDC 292
Court: District Court of New South Wales
Date: 3 December 2015
Judge(s): Mahony SC DCJ

Background

The appellant was convicted in the Local Court on 17 June 2015 of common assault under s 61 of the Crimes Act 1900. The alleged assault arose from a dispute at the appellant's motor home repair business at Long Jetty on 30 May 2014, when a customer and his wife attended to collect a vehicle on which repair work had been completed.

The customer alleged the appellant became aggressive during a disagreement over the bill, pushed him, attempted to disable the vehicle by pulling wires from the engine bay, and then punched him four times in the abdomen. The customer also alleged he sustained a cut to his lip when the appellant, holding keys in his hand, made contact with his face during the confrontation. The appellant denied all of this, contending it was the customer who had pushed him, and that the dispute arose because the customer had sought to avoid paying GST.

On appeal to the District Court, the appellant was permitted to adduce fresh evidence: an affidavit from a witness (Mr Scadding) and two emails dated 5 June 2014. The appeal otherwise proceeded by way of re-hearing on the Local Court transcript.

  • Whether the Crown had proved beyond reasonable doubt that the appellant committed a common assault on the customer contrary to s 61 of the Crimes Act 1900.
  • Whether fresh evidence, together with the existing transcript, was sufficient to displace the Local Court's findings.
  • How the appellate court should approach its fact-finding task when conducting a re-hearing by reference to a documentary record, having not seen or heard the witnesses firsthand.

Decision

Mahony SC DCJ acknowledged the appellate obligation to form an independent view of the facts from the transcript while recognising the advantage held by the Magistrate, who had seen and heard witnesses directly. The Magistrate had accepted the evidence of the customer and his wife as reliable, with the wife not having wavered in cross-examination on the key allegations of pushing and punching.

Despite those findings below, the District Court identified several features of the evidence that collectively raised a reasonable doubt. Witnesses who had been present at the premises that day, including a couple waiting nearby in a campervan, gave unchallenged evidence that they observed the customer's face as he left and saw no visible injuries. Two further witnesses at a separate business the customer visited that same day also observed no facial injuries.

The District Court also noted that the customer did not report the matter to police for five or six days, and there was no evidence of any complaint to bystanders at the time. The allegation of poor workmanship, which had driven the billing dispute, was undermined by the fact that the customer and his wife paid the account in full and then obtained the requisite vehicle certification. The wife was not an independent witness, and her evidence was coloured by her obvious involvement in the dispute.

The fresh evidence from Mr Scadding could not be directly linked to the alleged assault, but it was consistent with the appellant's account of a GST dispute, lending further doubt to the Crown's case. Taking all the evidence together, the District Court was not satisfied the Crown had proved the assault beyond reasonable doubt.

Orders Made

  • Appeal upheld.
  • The Magistrate's Orders made on 17 June 2015 are set aside.

Key Takeaways

  • A common assault under s 61 of the Crimes Act 1900 requires proof beyond reasonable doubt of an intentional or reckless act that causes another person to apprehend immediate and unlawful violence; an omission cannot constitute an assault, and the act must be hostile in character.
  • On a District Court appeal by way of re-hearing on transcript, the appellate judge must form an independent view of the facts while acknowledging the "natural limitations" of reviewing a documentary record rather than observing witnesses directly, as confirmed in Charara v R [2006] NSWCCA 244 and AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218.
  • Unchallenged evidence from multiple independent witnesses observing no visible injuries, combined with a delay in reporting and conduct inconsistent with the complainant's account, can collectively generate a reasonable doubt even where the trial court accepted the complainant as credible.
  • The District Court distinguished between the weight owed to a magistrate's credibility findings and its own independent obligation to assess whether the totality of the evidence, including fresh evidence on appeal, met the criminal standard of proof.
  • Where a complainant's account is supported only by a non-independent witness and is contradicted by several independent observers, the absence of corroboration may be sufficient to prevent the Crown from discharging its burden.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18 (fresh evidence on appeal)

Cases
- Charara v R [2006] NSWCCA 244
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218