Anthony John Matus v The Queen

[2015] NSWDC 292

District Court

New South Wales

Medium Neutral Citation:	Anthony John Matus v R [2015] NSWDC 292
Hearing dates:	24 November 2015
Decision date:	03 December 2015
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Appeal upheld. For orders see [34]
Catchwords:	Common assault
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001
Cases Cited:	AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Charara v R [2006] NSWCCA 244
Category:	Procedural and other rulings
Parties:	Anthony John Matus (Appellant) Director of Public Prosecutions (Crown)
Representation:	Solicitors: Anthony John Matus (Appellant in person) M Belcher (Crown)
File Number(s):	14/300621
Publication restriction:	Nil

Judgment ON APPEAL

1. The appellant appeals his conviction and sentence on 17 June 2015 on the charge of common assault pursuant to s 61 of the Crimes Act 1900. The appeal was heard on 24 November 2015. On 16 November 2015, the court made orders pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 granting leave to the appellant to adduce fresh evidence, being an affidavit of Mr Deane Scadding sworn on 19 September 2015, and two emails dated 5 June 2014.

2. The appeal is to be otherwise by way of a re‑hearing based on the transcript of evidence before the learned Magistrate. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the learned Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18].

3. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned Magistrate in his judgment of 26 May 2015. I note that I am bound to observe the “natural limitations” where the appeal is conducted by reference to the documentary record – see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [5] per Basten JA.

The charge of common assault

4. Section 61 of the Crimes Act provides as follows:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”

5. The onus is on the Crown to prove beyond reasonable doubt that an assault occurred. An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence, but generally includes a battery. There must, however, be an act, and an omission cannot amount to an assault. The act must be a hostile one.

Background to the offending

6. The alleged assault is said to have occurred at premises from which the appellant operated his business, Oztrek Motor Homes, at Long Jetty. On 30 May 2014, Mr Anthony Johnson and his wife attended at those premises to collect a vehicle on which the appellant had carried out work. A quotation had been given for that work and some instalment payments made.

7. What occurred at the appellant’s premises was very much in issue. Mr Johnson alleged that he was concerned about the quality of the work that had been carried out and raised that with the appellant, following which, the appellant became aggressive and pushed him. The appellant then attempted to disable the vehicle by pulling wires out of the engine bay and in the course of a confrontation with Mr Johnson, punched him four times in the abdomen and, as he was holding the keys to the vehicle in his hand, came into contact with Mr Johnson’s top lip, thereby causing a cut to the lip.

8. That assault was said to be witnessed by Mr Johnson’s wife, who gave evidence supporting her husband.

9. The appellant’s case was that Mr Johnson had sought from him a discount on the price of the work completed on the basis that as he was making a cash payment he should deduct the GST and further, that he wanted the transaction to be “off the books”. The appellant relies on the evidence of Mr Scadding to the effect that two days earlier a conversation took place between the appellant and Mr Scadding in which the appellant had told him about this proposal and Mr Scadding had told the appellant that he had no choice but to charge the GST. The appellant also relies on an email forwarded to Mr Johnson on 5 June 2014 in which the appellant raised the question of Mr Johnson’s refusal to pay GST and an alleged assault by Mr Johnson on the appellant. The appellant gave evidence that it was he who was, in fact, assaulted by being pushed by Mr Johnson.

10. The appellant relies on other evidence in his defence. First, statements from Mr Robert Cheatham and his wife Mrs Lisbeth Cheatham, who, on the day in question, had taken their vehicle to the appellant’s premises and were waiting in their vehicle for the transaction between the appellant and Mr Johnson to be completed. Both gave evidence, by way of police statement, to the effect that as Mr Johnson was leaving the premises, he stopped and spoke to them to complain about the manner in which he had been charged. Both stated that they observed Mr Johnson’s face and at no time saw any visible injuries. That evidence was unchallenged.

11. The appellant also relied on evidence given by Mr Glen Lynch and his daughter Ms Melissa Lynch, who observed Mr Johnson in their own business premises on the day in question. Mr Johnson had been referred to Mr Lynch to certify the work carried out on the vehicle. Both gave evidence to the effect that they observed no injuries on the face of Mr Johnson.

The evidence in the Crown case

12. The Crown relied on the evidence of Mr Anthony Johnson, who was asked what happened. He said:

“A: He said to me, we were in front of the bus in the workshop and my wife and myself had said we were not going to pay the full amount, you have to remove something off it. He then became animated and started yelling ‘Fuck you, fuck your bus, you’re not getting the bus, I’ve got the keys’. At that stage I said ‘I have a set of keys’. At that stage he said ‘I will rip the wires out of the fucking bus’. He was yelling right in my face at that stage, I could feel the spit landing on face. Around that point he nudged me or moved me but his workshop had a lot of things lying around on the floor …”

13. Mr Johnson gave evidence that after the appellant pushed him, he ran to the engine bay of the bus and the bonnet was open. Mr Johnson tried to get himself between the appellant and the engine bay and was asked:

“Q: What did you do with your person at this time, when he’s trying to rip the wires out, what are you doing?

A: I was trying to stop him and his arms were running round trying to get me out of the way and trying to get into the engine compartment.”

14. Mr Johnson gave evidence that the appellant had the key to the vehicle in his right hand and that the tip of the “keys or something” caught him on the lip. He was asked whether the appellant was doing anything else and said:

“A: Yes, he then went and used his fists into my stomach.

Q: Yes?

A: And he jabbed me right and left into the stomach and then he started the whole process of trying to remove me from the front of the bus again.”

15. Mr Johnson indicated that he had been struck about waist height with clenched fists. He said that his wife was yelling and screaming hysterically to get the appellant to stop and that she was yelling, “Stop it, stop it Tony, stop it.”

16. Mr Johnson gave evidence that it went on for about a minute and a half and then the appellant stopped, stepped backwards and said, “I’m calling the police, I’ve got CCTV cameras here.” Mr Johnson and his wife then waited for the police to come but after 20 minutes his wife said to him, “Look, let’s just pay the bill and get out of here.” She then paid the total bill.

17. Mr Johnson gave evidence that he did speak to people who were waiting in a small, white campervan outside the workshop, who inferentially were Mr and Mrs Cheatham. His evidence was that as he walked past he said to them, “Be very, very careful, don’t deal with Tony. He’s ripped us off with the bus”, or words to that effect.

18. Mr Johnson gave evidence that he went to the police five or six days later and at that time they took photographs which showed an injury to his upper lip and grazing and bruising on his abdomen.

19. In cross-examination, Mr Johnson denied the appellant’s case that there had been a dispute about GST or that he had asked the appellant not to charge it. He said the injury that he suffered was a very, very small injury to his top lip and he did not seek medical treatment for his injuries. His concern about the vehicle was that the work was below standard and he had told Mr Cheatham that the appellant was a shonk, and he should not trust him.

20. Mrs Johnson gave evidence that she and her husband inspected the vehicle and observed a number of things that had not been done correctly. She said the heater was not running properly, and when they got off the bus they had a discussion about the appellant’s bill. As she was going through the bill, she was standing approximately 4 metres away from her husband and the appellant. She stated to the appellant that she wasn’t going to pay the full amount but was going to keep some monies aside due to the fact of the poor workmanship on the bus. At that stage, the appellant erupted and said he would rip the wiring out of the vehicle and pushed past her husband. She then described the appellant as going over to the bus and looking into the engine bay. Her husband placed himself between the appellant and the engine bay and she described the appellant putting his hands around the sides of her husband into the bonnet. She then gave this evidence:

“A: He wasn’t successful at getting anything out of there and then he started to punch my husband’s stomach.

Q: Can you describe to the court how he was punching?

A: With closed fist.

Q: You said you saw his hands prior to the punching, was there anything significant about his hands?

A: Yeah, he had something shiny in his hands – I think it was his right hand.

Q: How many punches would you say was the left and right?

A: Three to four.

Q: Yes, what happened after that?

A: That’s when I moved closer to them and I told Mr Matus, ‘Stop, stop, stop’ and then Mr Matus stopped, moved back and said he was calling the police and Mr Johnson said to him, ‘I’ll wait’.”

21. Mrs Johnson then gave evidence that she waited for the appellant to get off the telephone and then she approached him and said, “I’ll pay the account”. She then paid the account in full and received a receipt.

22. In cross-examination, Mrs Johnson denied that her husband had abused the appellant for not discounting GST on the bill. She denied the proposition that there were no punches thrown at her husband at all and gave evidence that after that occurred, her husband was very scared and stressed.

The evidence in the case for the appellant

23. As outlined above, Mr Glen Lynch and Ms Melissa Lynch were called to give evidence to establish that a short time after the alleged assault, they observed no injuries on Mr Johnson. Mr and Mrs Cheatham’s statements were already in evidence, as outlined above.

24. The appellant gave evidence that he had been pressured constantly by Mr Johnson for discounts for cash payments to have the GST deleted. He was asked to describe what occurred and gave evidence that he told Mr Johnson, “if you’ve got a problem paying the GST, you can take it up with the ATO”. Mr Johnson then said to him, “You said I didn’t have to pay it, I’m not going to pay it, I’m giving you cash and I don’t want this on the books.” He was then asked:

“Q: Did you respond to that at all?

A: I didn’t respond to that, I walked towards the driver’s door of his vehicle, which was about 4 metres behind us. I said, ‘I’m going to take the key out’. He then said, ‘I have another key in my car’. He ran past me towards his car, which was parked at the back of his bus, which is about another 7 metres outside the workshop, and as he ran past me, I said to him, “Well I’ll disconnect the battery’.”

25. The appellant then gave evidence that he released the bonnet. He said:

“A: I went back to the front of the vehicle, put my hand under the bonnet lip to release the locking catch there, half way lifted the bonnet, Mr Johnson had then reappeared at my left side. From returning at his vehicle to retrieve his other key, he pushed with both palms of his hands forcibly downwards on the bonnet. I stepped backwards, I released the bonnet, I did not want to get into a physical altercation with him.

Q: What happened then?

A: The bonnet slammed shut, when the bonnet was shut he turned to face me, pushed me backwards, I tripped backwards two or three steps, hit the garbage bins that were next to some shelves at the roller door side entrance.”

26. The appellant then gave evidence that he retrieved his mobile phone and attempted to call the Entrance Police Station. He told Mr Johnson that he was going to call the police and pretended to make that call. Mr Johnson then said to his wife, “Pay him and let’s get out of here”.

27. Mrs Johnson then paid the invoice in full.

28. In cross-examination, the appellant denied pushing Mr Johnson in the chest and denied having the keys in his hand. He said they were in his pocket. He denied punching Mr Johnson four times in the stomach and gave evidence that the Johnsons’ evidence was a fabrication. He denied that Mrs Johnson yelled out “Stop, stop, stop”.

Determination

29. I acknowledged at the outset that I have to form my own judgment of the facts on the basis of the transcript evidence, whilst recognising the advantage enjoyed by the learned Magistrate, who saw and heard the witnesses called in the lower court. I note that in his reasons the learned Magistrate made findings that the evidence given by Mr and Mrs Johnson was reliable evidence and that Mrs Johnson did not waiver at all in cross-examination in respect to the “pushing and the punching”.

30. The onus is on the Crown to prove that the appellant assaulted the victim, Mr Johnson, beyond reasonable doubt. I have had regard to the whole of the evidence, including that of Mr and Mrs Cheatham, and Mr Lynch and Ms Lynch, as to the absence of injury observed on Mr Johnson’s face (there could be no observation as to his abdomen), and the absence of any evidence by him of complaint to any person until he reported the matter to the police some six days later on 5 June 2014. That evidence, together with the appellant’s evidence, establishes doubt that the appellant did assault Mr Johnson on the day in question.

31. Mrs Johnson was clearly not an independent witness. Further, the allegation of poor workmanship relied on by both Mr and Mrs Johnson was not borne out on the evidence. Rather, they paid the account in full and proceeded to obtain certification for the alterations to the vehicle from Mr Lynch.

32. Whilst the evidence of Mr Deane Scadding could not be linked to the alleged assault, it is somewhat consistent with the email sent by the appellant to Mr Johnson on 5 June 2014, thereby raising further doubt on the Crown case.

33. Having regard to the whole of the evidence, I am not satisfied that the Crown proved the charge of assault pursuant to s 61 of the Crimes Act beyond reasonable doubt.

34. For those reasons, the appeal will be upheld, and I make the following orders:

1. Appeal upheld.

2. Magistrate’s Orders made on 17 June 2015 are set aside.

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Decision last updated: 09 December 2015