Citation: [2020] NSWDC 929
Court: District Court of New South Wales (Criminal jurisdiction)
Date: 22 September 2020
Judge(s): Neilson DCJ
Background
This was an appeal against conviction for common assault, originally heard in the Downing Centre Local Court on 17 October 2019 before Magistrate Love. The appellant and the complainant (referred to as RD) were both tenants in a Department of Housing complex at Little Norton Street, Surry Hills. The appellant had lived there for approximately 17 years, while the complainant had been a resident since around 2012. There was a well-documented history of conflict between them, including disputes over communal garden areas, and an argument the day before the alleged assault during which the appellant told the complainant "I will destroy you" on more than one occasion.
On the afternoon of 15 May 2019, the complainant was standing on the narrow footpath outside the unit complex, speaking with a man named Paul Marcel Rasmussen. The appellant approached from behind Mr Rasmussen, moved past him, and made contact with the complainant's right shoulder using her own right shoulder, pushing the complainant sideways and somewhat backwards. A witness, Mr Rasmussen, described the contact as a "shoulder barge" or push. When challenged about her conduct, the appellant reportedly smiled and said words to the effect of "she knows what that's for."
The appellant was found guilty of common assault at first instance, convicted, and placed on a conditional release order under s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). She appealed the conviction to the District Court.
Legal Issues
- Whether all four elements of common assault (specifically battery) were proved beyond reasonable doubt — namely: (1) a striking, touching, or application of force; (2) without the consent of the complainant; (3) intentionally or recklessly; and (4) without lawful excuse.
- Whether the appellant could justify pushing the complainant on the basis that the complainant was obstructing the footpath.
- Whether the appellant could rely on self-defence on the grounds that the complainant posed a threat to her.
Decision
On the factual question, Neilson DCJ found that the evidence was essentially undisputed on the first three elements of common assault. There was no dispute that the appellant's right shoulder struck the complainant's right shoulder. There was no suggestion the complainant consented. As to whether the contact was intentional or reckless, the evidence — including the appellant's own admissions during her cross-examination of witnesses at the Local Court hearing — was "all one way." The appellant had put to the complainant that she "bumped you out of my way" and the post-incident remarks ("she knows what that's for" and "now you know what you're up against") clearly pointed to intentional conduct.
The critical issue was the fourth element: whether the conduct was without lawful excuse. The appellant advanced two justifications. First, she argued that the complainant was obstructing the footpath, impeding her right to walk along it. The Court accepted the evidence that the footpath, while narrow (approximately one metre), was widened in the area near the unit entrances, and that the complainant was not blocking it. More fundamentally, Neilson DCJ held that even if the complainant had been obstructing the footpath — itself a criminal offence — that would not have given the appellant the right to commit a further offence by pushing her out of the way. The appellant could simply have walked around or asked the complainant to move.
Second, the appellant raised self-defence, suggesting she was terrified of the complainant. Neilson DCJ found there was no basis for this defence. The complainant was merely standing on the footpath talking to another person and offered no threat to the appellant. There was nothing in the evidence to suggest the appellant needed to use force to protect herself. The appeal against conviction was accordingly dismissed.
Orders Made
- The appeal against conviction was dismissed.
- The original conviction for common assault and the conditional release order under s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were confirmed.
Key Takeaways
- The District Court held that the commission of an offence by one person (such as obstructing a footpath) does not provide a lawful excuse for another person to use physical force against them, confirming that self-help remedies involving force are not legally available in such circumstances.
- Admissions made by the self-represented appellant during her cross-examination of prosecution witnesses at the Local Court hearing proved pivotal, as they effectively conceded that she deliberately pushed the complainant.
- Self-defence requires a reasonable apprehension of immediate and unlawful violence at the time of the alleged offence; a generalised fear of, or history of conflict with, another person is not sufficient to ground the defence.
- Although some of the complainant's evidence (such as being pushed "at least two metres") was found to be hyperbolic when compared with photographic evidence, this exaggeration did not undermine the core finding that an assault had occurred.
- In upholding the conviction, the Court reiterated the technical distinction between assault and battery, clarifying that assault involves causing apprehension of immediate violence while battery is the actual infliction of unlawful force, and confirmed that the charge in this case involved battery.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)(a)
Cases:
- DPP v JWH (unreported, Supreme Court of NSW, 17 October 1997) — on the distinction between assault and battery
- R v Burstow; R v Ireland [1998] 1 AC 147 — on the definition of assault as causing apprehension of immediate and unlawful violence