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District Court 15 November 2024

R v Barlow

[2024] NSWDC 539

Assault & violence
CRIMINAL LAW CONVICTION APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM WHETHER ANY ERROR BY MAGISTRATE DEFENCE OF SELF DEFENCE NOT MADE OUT

Citation: R v Barlow [2024] NSWDC 539
Court: District Court of NSW
Date: 15 November 2024
Judge(s): Catsanos SC DCJ

Background

The appellant was a NSW Police officer who, in June 2020, attended a residential complex in Surry Hills with two probationary constables to respond to a disturbance. While in a nearby park, the officers encountered a group of young males. During a tense verbal exchange, a complainant (whose identity was anonymised under the Children (Criminal Proceedings) Act 1987 (NSW)) said words to the effect of threatening to punch the appellant.

The appellant immediately advanced on the complainant, physically restrained him with his arms behind his back, and then performed a "leg sweep," striking the complainant's legs out from under him. The complainant fell heavily to the ground and suffered actual bodily harm as a result.

The appellant was convicted by a magistrate in the Downing Centre Local Court of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW). He appealed that conviction to the District Court.

  • Whether the Magistrate made factual errors in finding that the complainant offered no resistance in the lead-up to the leg sweep
  • Whether the Magistrate erred in finding that the leg sweep technique is not one taught to NSW Police officers
  • Whether the Magistrate improperly took into account the appellant's failure to mention any kick or attempted kick by the complainant in contemporaneous records
  • Whether the Magistrate gave insufficient weight to the appellant's own evidence of his perception of the threat
  • Whether the Magistrate gave too much weight to the complainant's evidence on the question of resistance
  • Whether the force used was lawfully justified under s 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) as reasonably necessary to effect an arrest
  • Whether the leg sweep constituted lawful self-defence under s 418 of the Crimes Act 1900 (NSW)

Decision

The District Court confirmed that its appellate jurisdiction under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) required the appellant to establish error by the Magistrate in the fact-finding process, the identification or application of the law, or in the exercise of a discretionary power. The Court could intervene if satisfied the Magistrate should not have been satisfied beyond reasonable doubt as to guilt, but it was required to recognise the Magistrate's advantage of having seen and heard the witnesses.

On the factual grounds, the Court rejected the appellant's argument that video evidence suffered from "foreshortening" or "playback timing issues" that undermined the Magistrate's findings. Reviewing the footage itself, the Court found it did not show the complainant kicking or shaping to kick. The Court also noted the conspicuous absence of any reference to a kick or threatened kick in the appellant's contemporaneous verbal exchanges or his COPS event entry, where one would expect such a threat to form part of the explanation for using the leg sweep.

On the LEPRA defence, the Court found the force used was objectively unreasonable and disproportionate. By the time the leg sweep was performed, the complainant was compliant, physically restrained with his arms held behind his back, off-balance, and was compromised or precluded from being able to kick anyone. In those circumstances, it was highly likely, if not inevitable, that the leg sweep would cause a heavy, unprotected fall to the ground. The Court was comfortably satisfied the Crown had negatived both the LEPRA justification and the self-defence claim beyond reasonable doubt.

No error was established in the Magistrate's reasoning or conclusions. The appeal was dismissed.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • A conviction appeal under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) requires the appellant to identify specific error by the Magistrate; the District Court forms its own view of the facts but gives weight to the Magistrate's advantage in seeing and hearing witnesses.
  • Under s 231 of LEPRA, force used to effect an arrest must be reasonably necessary in the circumstances. The District Court held that a leg sweep applied to a person already physically restrained, compliant, and off-balance was objectively unreasonable and disproportionate.
  • Where an officer claims self-defence under s 418 of the Crimes Act, the Crown need only negative that defence beyond reasonable doubt. Here, the court found the claimed threat of kicking was not supported by the video evidence and was conspicuously absent from contemporaneous records.
  • Contemporaneous documentation, such as COPS event entries and verbal exchanges captured on body-worn video, can carry significant weight when a court assesses the credibility of a later-raised justification for the use of force.
  • In dismissing the appeal, the District Court confirmed that video evidence does not automatically yield to witness testimony where the footage itself provides a reliable account of the relevant conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 418
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 231
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A

Cases:
- McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298
- Lunney v Director of Public Prosecutions (2021) 105 NSWLR 236; [2021] NSWCA 186
- Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244
- Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72
- McIntosh v Webster (1980) 43 FLR 112