Citation: Beau Osborne v R [2015] NSWDC 288
Court: District Court of New South Wales
Date: 27 November 2015
Judge: Mahony SC DCJ
Background
The appellant was convicted in the Local Court on 10 July 2015 of common assault (domestic violence related) against a woman at Belmont on 8 March 2015, and two counts of assault occasioning actual bodily harm against a neighbour, Stephen Lamb, on the same date. He appealed the convictions only, not the sentence.
The incident arose after neighbours heard a woman screaming and observed what they believed to be a violent assault. Stephen Lamb, his son Mark Lamb, and a neighbour Greg Lewis jumped a back fence onto the appellant's property to intervene. The appellant responded by throwing a piece of wood from an upper deck, then discharging a spear gun through a partially open sliding glass door, striking Stephen Lamb in the torso. When the three men entered the premises and restrained the appellant on the ground, the appellant bit Stephen Lamb's left forearm for approximately twenty seconds, causing a wound that required hospital treatment.
The conviction appeal was heard at Gosford District Court on 19 November 2015 by way of re-hearing on the transcript of evidence from the Local Court.
Legal Issues
- Whether the Crown had proven each of the three charges beyond reasonable doubt
- Whether the appellant's claim of self-defence had been negatived by the Crown beyond reasonable doubt in respect of the assault occasioning actual bodily harm charges
- Whether the three men's entry onto the property and subsequent restraint of the appellant was lawful in the circumstances
Decision
Mahony SC DCJ conducted the appeal as a re-hearing on the documentary record, applying the principles from Charara v R [2006] NSWCCA 244 and observing the "natural limitations" of appellate review identified in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. His Honour accepted the evidence of Stephen Lamb, Mark Lamb, and Greg Lewis, and rejected the appellant's account that the three men had attacked him and that he had not discharged the spear gun at them.
On the question of self-defence, his Honour found that the appellant was the original aggressor, having assaulted the woman on the premises. In those circumstances, the three neighbours were entitled to enter the property to apprehend him or cause him to desist from that criminal behaviour. The appellant's use of the spear gun was not a reasonable response to the situation he faced, and rather than retreating or declining further conflict, he escalated it.
His Honour further found that biting Stephen Lamb's forearm during the restraint could not have been genuinely believed by the appellant to be necessary in his own defence, nor was it a reasonable response to the danger as he perceived it. The Crown had negatived self-defence on both assault occasioning actual bodily harm charges.
The court was satisfied that each of the three offences had been proven beyond reasonable doubt, and that there was no reasonable possibility the appellant held a genuine and reasonable belief that his conduct was necessary for self-defence. The appeal was dismissed and the Magistrate's convictions confirmed.
Orders Made
- The appeal is dismissed.
- The Magistrate's order convicting the appellant is confirmed.
Key Takeaways
- A person who is the original aggressor in a domestic violence incident cannot readily rely on self-defence to justify subsequent use of force against bystanders who intervene to stop the assault.
- The District Court confirmed that neighbours who entered private property to protect a woman they reasonably believed was being violently assaulted were entitled to do so, and that the appellant's response with a spear gun was not a reasonable answer to that intervention.
- In dismissing the appeal, the court applied the principle that both the genuine belief in the necessity of the defensive act and the objective reasonableness of the response must be established; neither element was satisfied here.
- Where a conviction appeal in the District Court proceeds by re-hearing on transcript, the appellate court forms its own view of the facts while acknowledging the advantage the original Magistrate had in seeing and hearing witnesses directly.
- Sufficient evidence existed, including hospital records confirming a human bite wound and consistent accounts from three witnesses, to support each of the three convictions beyond reasonable doubt.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59(1) and 61
Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Colosimo and Others v Director of Public Prosecutions [2006] NSWCA 293
- R v Katarzynski [2002] NSWSC 613