District Court New South Wales Medium Neutral Citation: Champion v R [2020] NSWDC 929 Hearing dates: 22 September 2020 Date of orders: 22 September 2020 Decision date: 22 September 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: The appeal is dismissed. Catchwords: CRIMINAL LAW – CONVICTION APPEAL A found guilty of Common Assault. All four elements of common assault proved beyond reasonable doubt. A sought to justify pushing C out of her path on the basis that C was obstructing the footpath and/or in self-defence. Obstructing the footpath is a criminal offence. That did not give A the right to commit an offence. C was merely standing on the footpath talking to someone else. C offered no threat to A. No defence of self-defence available. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: DPP v JWH (unreported), 17 October 1997 R v Burstow; R v Ireland [1998] 1 AC 147 Texts Cited: Nil Category: Principal judgment Parties: R – Crown Appellant – Margaret Ruth Champion Representation: Crown G. Rixon Appellant Self-represented File Number(s): 2019/00154113 Publication restriction: Nil Judgment 1. HIS HONOUR: This is an appeal against a conviction recorded by Magistrate Love sitting in the Downing Centre Local Court on 17 October 2019. The appellant was charged with assaulting Roya Djalali at approximately 1:30pm on 15 May 2019 at Surry Hills in this State. His Honour found the offence proved, recorded a conviction and placed the appellant on a conditional release order pursuant to s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999. 2. The assault alleged arose out of a preceding animus between the appellant and Djalali. According to evidence given by the appellant, she had been living for 17 years at a Department of Housing complex at Little Norton Street, Surry Hills. Ms Djalali was living in unit number 9. As I understand the evidence, the appellant was living at unit number 3. According to exhibit 2 Ms Djalali had been living at unit number 9 for about four years at the time of the assault alleged. At T31.22 the appellant said this: "I have to say that I've have had a long history of conflict with Ms Djalali, and she absolutely terrifies me." At T32.29 the appellant said this: "I know Ms Djalali very well, she has been there since 2012, and there have been similar incidents to this in the past. I've been subjected to considerable harassment from Ms Djalali, and I have adopted the position that I really don't want anything to do with her, that I don't wish to speak to her when she approaches me." 1. At the rear of the property at Little Norton Street, Surry Hills, is a communal garden which has been in some way divided into separate plots or lots that tenants look after. There had been disagreement between Ms Djalali and the appellant about the common garden area and on 14 May 2019, which was a Tuesday, there had been disagreement between the two. Perhaps to be fair to the appellant I should point out this, the complainant, Ms Djalali, admitted in cross-examination that there was interchange between her and the appellant that lasted about five minutes. This evidence was then given: "Q. Ms Djalali, you said that to me, you said, 'I have been recording this conversation, and I'll be taking you to court'? A. Maybe I said that, but actually I don't have a recording device. Q. In response to that, I said to you, 'I will destroy you'? A. I remember you saying, 'I will destroy you,' a few times." A little later the appellant asked a further question of the complainant which needed to be re‑put to the complainant by his Honour. This is the question re‑put by his Honour and the complainant's answer: "Q. ...the question is, did you lift up your shirt and point to something and say, 'This is a recording device and I will see you in court'? A. Possible, it's possible because I tried to, because she always carries the recording device." The appellant then asked the complainant this question and received the following answer: "Q. Ms Djalali, and for a second time, I said to you, 'I will destroy you'? A. You said it, yes." It is alleged by the appellant that a number of other things occurred, but it is unnecessary to recite them because they are not directly relevant to what happened on the following day. However, I cited what I have to show that there was an animus between the complainant and the appellant. 1. The police case is that on Wednesday 15 May 2019 at about 1.30 Ms Djalali was standing on the footpath outside the entrance to units number 9 and 11. A photograph of that area is the second photograph in exhibit A in the Local Court. The first photograph in exhibit A shows the footpath outside the block of units and the carriageway of Little Norton Street. It appears that the footpath is only about one metre wide. The wall of the complex is solid brick. Between the wall of the complex and the kerb there is a narrow corridor about one metre wide, constituting the footpath. However, where there are entrances to some of the units the footpath is in fact widened to an extent by a distance which appears to me to be about a further metre. One can see in the second photograph in exhibit A, stairs leading up on the left hand side of the photograph to one unit and stairs leading up on the right hand side to another of the units. I infer that the stairs on the left lead to the unit occupied by the complainant, but I may be in error in that regard. In either case it matters little which stairs lead to the complainant's unit, the stairs on the left or the right. 2. At the relevant time the complainant was talking to a gentleman known as Paul Marcel Rasmussen. The complainant gave evidence that she was standing on the footpath and Mr Rasmussen was about "a few metres away" to the complainant's left and she saw the appellant walking on the footpath and walking directly towards her, staring at her. The complainant agreed that the appellant was approaching her from behind Mr Rasmussen's back. She was challenged to suggest that Mr Rasmussen would have completely blocked her view of the oncoming appellant, but the complainant denied that and said that she could look over Mr Rasmussen's left shoulder and see the appellant walking towards her along the footpath. In answer to a question asked by his Honour, the complainant said this: "She charged towards me, like she was walking straight, and the conviction strong, and I was actually staring because I was just looking at her, thinking I was a bit surprised because she was so focused on walking towards me, and was a bit surprised and then she came and she just walked towards me and into me, and shouldered at me, and I went a few metres back, and I just didn't expect that, I was shocked." She went on to say that the appellant's right shoulder struck her right shoulder. 1. At T18.49 the complainant said in cross-examination that she was projected backwards "at least two metres". That appears to be hyperbole. From the positions that she marked on the second photograph in exhibit A she appears to have moved about no more than half a metre from the footpath where she has marked X and the number 1 on the photograph to the paved area between the flights of stairs where she has placed another X and the number 2 on the photograph. 2. There is an issue as to whether the complainant went "backwards" or "sideways" and from my reading of the evidence it appears to me to be more likely that she went sideways and perhaps slightly backwards. However that is largely irrelevant. 3. It is important to bear in mind that crimes of this nature contain a number of essential ingredients or elements that the prosecuting authority, whether it be the police or the Crown, must prove. The relevant elements for the crime here alleged, common assault with an actual touching by the appellant of the complainant contains four elements. They are these: 1. A striking, touching or application of force by the accused person to the other, the complainant; 2. Such conduct of the accused was without the consent of the complainant; 3. Such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight, as a result of what he or she was about to do, but took the risk that it might happen; 4. That such conduct was without lawful excuse. 1. This was not merely an assault, but a battery. An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. Thus it is fear which is the gist of an assault. Battery is the actual infliction of unlawful violence on another, but the word "assault" has come to describe both offences. That was pointed out some time ago by the Supreme Court in DPP v JWH (unreported), 17 October 1997. 2. Here there is no dispute that the appellant's right shoulder came into contact with the complaint's right shoulder. Here, there is no suggestion that the complainant consented to the appellant's doing that. The question then becomes whether the conduct was intentional or reckless. I will leave the fourth element to later discussion. 3. The evidence is all one way on the third element. In cross-examination of the complainant this exchange occurred: "Q. Because you were deliberately standing on the footpath, impeding my progress? A. No, that is not correct. I will have to again, just to clarify the confusion, that there was no verbal communication, and then you hit me, and Paul was the one who said, 'What did you do that for?' and then you said, 'Oh, she knows it', and then you said to me, 'Now you know what you're up against.' There was no word coming from me. You said that to me after you're already gone a few metres, eight metres, five metres away. I was in shock. Q. Ms Djalali, I put it to you that I did not bump you backwards, I actually bumped you sideways, to give me space to continue? A. There is plenty of space. It's a council regulated pedestrian, it's enough for people to be civil. I've never been bumped there before, except by you, again four years ago. Nobody has ever bumped into me there. Q. Ms Djalali, after I bumped you out of my way, Mr Rasmussen called out, 'What was that for'? A. Yes. Q. And I responded, I said, 'She knows'? A. Yes. Q. I was continuing on my way along Little Norton Street and you have already said, you yelled out 'Idiot', and threw pieces of orange peel at me? A. Which didn't hit you, because it landed in front of my own, because like that was my reaction, yes." I should point out there was an issue as to whether the orange peel made contact with the appellant's back, but the complainant was not charged with assaulting the appellant. 1. At T18 the appellant put to Ms Djalali that as she approached her, Ms Djalali was facing towards the appellant. The complainant agreed with that and it was then put to the complainant that the appellant bumped her sideways and the complainant replied that the appellant could have hit her sideways, but she believed that she was also pushed back. 2. There were also what I would regard as admissions made by the appellant when she was cross-examining Mr Rasmussen. The gist of Mr Rasmussen's evidence is this: "Q. Can you tell the Court what happened? A. I was having a conversation with Roya, we were both on the footpath, and I have to say straight off that I used to do maintenance for Housing, so I know both of these people, and to me they were always treated on equal terms, so there is no agenda here. I was just having a conversation with Roya, she was facing me, slightly to my right, so she wasn't directly in front of me, she was just a little off to my right, and not much, but about maybe half her body was, maybe that's all. I didn't see Ruth come behind me, but I saw her as she came past me. She cut in front of me, went to my right, and either shoulder barged Roya, or pushed her. Now, I couldn't see whether her hands were there, because, of course, I'm looking at her back at this point. Roya sort of went backwards a bit. Once I said to, I yelled out something about, 'Hey, that's an assault,' Ruth turned around and smiled and said 'she knows what that's for', or 'what it's about', or something to that effect." In cross-examination Mr Rasmussen gave this evidence: "Q. You are not a small man, you are a large man, and you were taking up pretty much the entire footpath. As I approached you from behind, I called out to you, 'Hi Paul', and you turned around and made way for me to go past you? A. Ruth, that's a total fabrication, none of that took place. Listen, the footpath is at least a metre wide, I am not a large man, I'm one metre 70, and I'm not a metre wide. There was space ample for you to go around. Whether you stepped on the road and came back on the footpath I don't know, because you came from behind me. I just saw you as you came past, and you cut slightly in front of me and barged her or pushed her, or both. I don't know." In the two questions after that, the appellant put to Mr Rasmussen that she bumped Ms Djalali and after a further question along the same line, Mr Rasmussen said this: "You didn't bump her, you deliberately barged her, or pushed her, or both. It was no bump. You had to walk around me and cut in front to actually do the deed, so there was no action then to nudge, push, whatever it was a deliberate attack on that person. Q. Mr Rasmussen, I bumped Ms Djalali because she was standing in the middle of the footpath? A. No. Q. I was unable to go past her without bumping her out of the way? A. No, incorrect. And as you walked off down the street, you turned and looked back with a grin on your face, and you said 'she knows what that's for'." Three questions later the question put by the appellant contained this statement, "After I bumped Ms Djalali out of my way." 1. In cross-examination, this evidence was given by the appellant: "Q. Your version is that essentially was an accident, wasn't it, because you didn't see her, Paul moved out of the way the last minute, and you bumped into her? A. Well, it wasn't an accident, it was-- Q. On your part? A. On my part, yes, yes on my part, I felt that there was no way I could avoid bumping into her so all the implications of this did go through my mind at the time and-- Q. All the implications going through your mind, the physical contact occurring, and you would agree, though, having these thoughts in your head about what this might mean, the fact that contact was made, the fact that you had thought that Roya might use it against you, why didn't you say, 'Sorry, Roya, that was an accident'? You agree that you could have potentially made yourself-- A. No, because I didn't consider that it was an accident in that she could so easily have stepped out of my way, and that's what I expected her to do and she didn't. Q. You expected her to step out your way in the split second you had before even seeing you, and even on your evidence she would have had a split second. How would she know to stand out of your way? A. Once Paul turned side on to give me room to pass, she had the opportunity then to step to the side and given that she hadn't just done that, I expected that she also would move to the side, but she didn't." The appellant went on to suggest that the interaction between herself and the complainant was something like a motor vehicle accident, a collision between two cars and there was no way of avoiding it because she had her momentum up. 1. I have not had the benefit of hearing the witnesses give their evidence, nor have I had an opportunity of assessing their credibility. The learned magistrate had that advantage. At T37.31 his Honour said this: "In assessing the evidence, I found Ms Djalali to be a witness of truth; she considered that she lifted her shirt and said, 'This is a listening device and I'll see you in court', even though she did not have any type of listening or recording device. She also conceded that she threw orange peel at Ms Champion and said she wished it had hit her. She was consistent in her account and I accept her evidence. I also found Mr Rasmussen to be a witness of truth; he said he viewed Ms Djalali and Ms Champion equally until this incident and denied being biased towards Ms Djalali. He gave evidence that Ms Champion stepped into Ms Djalali when she made contact." 1. The written submissions prepared by the appellant, which I have marked MFI 1, referred repeatedly to Ms Djalali, the complainant, and Mr Rasmussen as telling lies, but that was not the finding of the learned magistrate who had the advantage of seeing the witnesses give their evidence. MFI 1 contained averments of facts not otherwise contained in the evidence given in the Local Court. I ignore such averments. I have carefully taken into consideration what the submissions that are made by the appellant in MFI 1. However, a careful reading of the transcript in my mind shows clearly the proposition that the appellant collided with the right shoulder of the complainant because she, the complainant, would not move out of the appellant's way leaving her unimpeded access along the footpath towards Foveaux Street. 2. The appellant maintained that she had been walking briskly and that momentum would carry her forward to the collision albeit that the things were moving slowly in her head and that she could foresee that this incident would be used as an excuse by Ms Djalali to make a complaint to the police about the appellant's conduct. If she had the time to complete such ratiocination she had time to stop her progress or move to one side or the other. Even if she could not avert a collision the immediate thing would have been to apologise for the accident. However, the appellant herself said this was no accident because it could have been avoided by the complainant, albeit that she had the onus of averting the accident. 3. The learned magistrate said this at T38.14: "I have considered the photo exhibit A of the footpath, and to my mind there was sufficient room for Ms Champion to walk past both Mr Rasmussen and Ms Djalali without making contact. Ms Champion also had a number of options available to her and she walked quickly towards Mr Rasmussen and Ms Djalali; she could have stopped walking prior to reaching Mr Rasmussen; she could have slowly walked around both Mr Rasmussen and Ms Djalali; she could have crossed to the other side of the road. She did none of those things; she continued to walk at pace, and on the evidence of Mr Rasmussen, stepped into Ms Djalali." Clearly the learned magistrate reached the view that the appellant's conduct was intentional or that it was reckless in that the appellant realised that the complainant might be touched by her and nevertheless she did nothing to abort her progress towards her. The third element has been made out. 1. The next defence raised is that there was a lawful excuse for this conduct. That, I am afraid is insupportable. In her written submissions the appellant said this: "Was Ms Djalali entitled to remain standing in the middle of the footpath as I approached? The magistrate, Mr Love, was legally in error when he stated that Ms Djalali was under no obligation to move out of the way when I was walking along the footpath. ... The Rules of the Road state, 'A pedestrian must not unreasonably obstruct the path of any driver or another pedestrian.' (Rule 236.2.) I believe I acted appropriately in the circumstances, and was not committing any offence. In bumping her out of my way, there was an element of self-defence on my part." Rule 236.2 creates a criminal offence. The maximum penalty is a fine of 20 penalty units. If the complainant was deliberately blocking the footpath she was committing a criminal offence. The appellant could have reported her conduct to police. She did not do that. Instead she committed a crime herself by pushing the complainant out of her way with her shoulder. The fact that the complainant may have been committing an offence does not entitle the appellant to herself commit an offence. 1. Furthermore, the complainant was doing nothing to threaten the appellant. The appellant did not need to defend herself from any action or activity of the complainant. The complainant was merely standing on the footpath. She was not threatening the appellant. The appellant may have perceived that she was impeding her progress, but that did not give her a right to remove her from the footpath. There can be no defence in the current case of lawful excuse. 2. The four elements of the offence of common assault were established before the learned magistrate. The appeal is accordingly dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2022