Timothy Michael Kelly appeals assault conviction in Ipswich District Court

A man who punched his neighbour following a roadside argument has appealed an assault conviction on the basis he was acting in self defence.

A Thornton man who was found guilty of beating his neighbour unconscious in 2019 has successfully appealed an assault conviction as he was acting in self-defence.

Timothy Michael Kelly stood trial in the Gatton Magistrates Court on November 17, 2020, charged with one count of assault occasioning bodily harm.

Mr Kelly was charged over an assault on his neighbour, Neville James Pittman, on October 4, 2019 at Thornton.

At the end of the trial, the magistrate found Mr Kelly guilty and he was fined $1500 with no conviction recorded.

Now, Mr Kelly has appealed the conviction in the Ipswich District Court before Judge Dennis Lynch.

According to court documents, Mr Kelly claimed he was acting in self-defence at the time of the assault.

“The appellant appeals against his conviction on the grounds the verdict was unreasonable and not supported by the evidence, the learned Magistrate erred in concluding a defence of self-defence had been excluded, and that the learned Magistrate gave insufficient reasons for his conclusions,” Judge Lynch said.

Mr Kelly said on the day of the incident he was driving home along Kowaltzke Road and expecting his wife to be following him home about half an hour later.

He saw Mr Pittman standing on the side of the road and said as he drove past his neighbour yelled abuse such as “gutless prick” and attempted to throw something at Mr Kelly.

According to court documents, the two men had no each other for two decades and had been involved in several disputes over the years.

Knowing his wife was “petrified” of Mr Pittman, Mr Kelly stopped, got out of his car and told the man to “leave our family alone.”

He said Mr Pittman was swearing, was aggressive and had raised fists.

Mr Kelly said he believed he was going to be hit by Mr Pittman, so he punched him with a “left then a right” around the eyes.

He said Mr Pittman backed away but then “fired up” and “it’s escalated” as Mr Pittman came back towards him, within arms length.

Mr Kelly said he backed up a couple of steps, had his back against the vehicle with nowhere he could go, which was “very scary.”

He said he then punched Mr Pittman with a right to the chin.

Mr Pittman dropped “face down” on the gravel near the road and was “obviously unconscious.”

Mr Kelly said he rolled him onto his side and dragged him away from the road, staying with him until he came to, the court documents state.

In his evidence, Mr Pittman denied saying “gutless prick” and said he had said “where’s the potato digger?” to his neighbour as he drove past, referring to equipment his family had loaned Mr Kelly in the past.

Mr Pittman said Mr Kelly stopped and reversed his car, walked over to Mr Pittman and said “what the f--- did [you] say?” and Mr Pittman replied “where’s the potato digger?”.

He said Mr Kelly seemed angry and then hit him in the temple with a fist, knocking his phone out of his hand.

He said he went to retrieve his phone and thinks he was then hit in the back of the head, he was unsure if he was hit again but knew he ended up going “over the fence” and was knocked out.

According to the court documents, Judge Lynch said he found Mr Pittman’s evidence to be “unreliable.”

“ … I conclude there is reason to doubt the reliability of Mr Pittman’s evidence concerning the alleged assault upon him.

“I am not satisfied beyond reasonable doubt Mr Pittman’s account of the confrontation should be accepted.

“On that basis, the version of Mr Kelly has not been disproved, and the defence of self defence has not been negatived.

“I have concluded the appeal should be upheld, the conviction set aside, and the appellant found not guilty of the charge.”