Anthony John Matus v R [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.