Beau Osborne v The Queen

[2015] NSWDC 288

District Court

New South Wales

Medium Neutral Citation:	Beau Osborne v R [2015] NSWDC 288
Hearing dates:	19 November 2015
Decision date:	27 November 2015
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Appeal Dismissed
Catchwords:	Conviction Appeal; common assault, domestic violence related from an assault occasioning actual bodily harm
Legislation Cited:	Crimes Act 1900
Cases Cited:	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
Category:	Principal judgment
Parties:	Beau Osborne (Appellant) Director of Public Prosecutions (Crown)
Representation:	Solicitors: M Fokkes (Appellant) M Belcher (Crown)
File Number(s):	15/70612
Publication restriction:	Nil

Judgment ON APPEAL

Introduction

1. There are three charges the subject of this Conviction Appeal. They are as follows:

1. Pursuant to s 61 of the Crimes Act 1900, common assault, domestic violence related, alleging that on 8 March 2015 at Belmont, the offender did assault Ashley Becker.

2. Pursuant to s 59(1) of the Crimes Act 1900, assault occasioning actual bodily harm, alleging that on 8 March 2015 at Belmont, the offender did assault Stephen Lamb, thereby occasioning actual bodily harm to him, and,

3. Pursuant to s 59(1) of the Crimes Act 1900, assault occasioning actual bodily harm, alleging that on 8 March 2015 at Belmont, the offender did assault Stephen Lamb, thereby occasioning actual bodily harm to him.

2. The offender was convicted on 10 July 2015 and subsequently sentenced. There is no appeal on the severity of sentence. The Conviction Appeal was heard at Gosford District Court on 19 November 2015.

3. The appeal is 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 Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18].

4. 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.

The Crown case

5. The Crown case included the following exhibits:

1. Exhibit 1 – Statement of Constable Jason Welsh

2. Exhibit 2 – Statement of Constable Craig Hansen

3. Exhibit 3 – Belmont District Hospital discharge referral

4. Exhibit 4 – Photographs

6. I have read the police statements, exhibits 1 and 2, and the Belmont District Hospital discharge referral. That referral concerned the treatment of Stephen Lamb for a wound on his left medial forearm, together with a small wound on his left chest wall. He was diagnosed with a human bite wound on the left forearm and the wound on his left chest wall was from a spear gun injury.

7. I have read the transcript of evidence from the witnesses in the lower court. Stephen Lamb gave evidence that he responded to hearing a woman screaming at premises near to his own home between 1pm and 2pm on 8 March 2015. He went to the rear of those premises with his neighbour, Greg Lewis, and heard him yelling to someone, “Stop it, you’re going to hurt her”. Mr Lewis then asked Mr Lamb, “What are we going to do?”, and Mr Lamb said, “Well we’re going to have to go in”.

8. Both Mr Lamb and Mr Lewis then jumped over the back fence to the subject premises. Mr Lewis told Mr Lamb that there was a man punching a woman and he described the screams as, “I’ve never heard a woman scream like that in my life”. He thought she was getting “either violently attacked or killed”.

9. Once Mr Lamb was on the premises, he saw the offender on the bottom of the two level premises and yelled to him, “Let her go”. He then gave evidence that the offender took the woman inside and was then standing on the deck on the upper level and threw a piece of wood at himself and Mr Lewis. They approached the back door to the premises, which was a sliding glass door. He observed the sliding glass door to open, approximately 10 or 15 centimetres, and Mr Lewis said to him, “Look out, he’s got a spear gun”. He gave the following evidence:

“Q: Did you see he was holding – did you see who was behind the glass door?

A: Yeah. The bloke that we seen on the top deck. He was holding the spear gun out through the door. Our reaction was to rush the door, hoping either to knock the spear gun, shut the door, do something, but not be attacked with the spear gun. As we did that, I probably got within a metre of it and as far as I’m concerned, he fired the spear gun and it hit me in the ribs, but Greg had dived with me and somehow the spear gun and I must have been knocked and it hit me, but deflected away, so it didn’t hit me direct.”

10. Mr Lamb then gave evidence that they entered the premises and tackled the offender onto the ground. He then described the offender as making a grab for a machete, which was on the carpet on the inside of the premises. He gave the following evidence:

“Q: What happened once you were on the ground?

A: Right. As we went to the ground, he made to grab the machete. Somehow I’ve got rid of it. I’ve either kicked it or pushed it out as we’ve gone down to the ground, but it finished up over to our – my left, his right, a few – maybe five, six feet away. We’ve gone to the ground. Then I realised my son was in amongst us. Luckily my son was there, as far as I’m concerned. We went down – all went down to the ground. My left arm finished up underneath the accused’s face, neck area. So my arm is on the carpet. His face is there. My son is over the top with his arm around his throat.

Q: And what’s happened then?

A: Then he latched on with his teeth. He bit my arm and didn’t let go.

Q: How long do you say he was biting you for?

A: Twenty seconds maybe.

Q: And it may seem like a silly question, but how did it feel?

A: Not good. When I looked down and his teeth were stuck into me and when we got him to let me go, the piece of flesh was sitting up probably 5 millimetres.”

11. In cross-examination, Mr Lamb was asked when he moved towards the back door, where was the girl. He answered:

“A: I don’t know. I was still watching the accused.

Q: Why didn’t you retreat at that point, sir?

A: Would you?”

12. He then went on to describe observing the girl standing next to the accused pleading for their assistance. He did not agree with the suggestion that the appellant and his girlfriend were having a loud argument and he decided that he was going to try and assist her because it was no more than a loud argument. He also denied that he entered the premises to teach the appellant a lesson. He further denied that all three of the men entered the house and attacked the appellant and denied that he had swung a machete at the appellant and caused him a cut to his head.

13. Mr Lamb also denied that the three of them attacked the appellant and that he himself had run into the spear gun and that it was never shot at him in any way.

14. Mr Greg Lewis gave evidence that he observed the appellant grabbing hold of the woman and dragging her inside. She was yelling “Please help” and he jumped the fence into the property intending to help her.

15. Mr Lewis gave evidence that he saw a spear gun and was asked why he rushed the door. He stated:

“A: Well I figured if we just stood back, you know, the three of us, you know, he could have come out and just, you know, fired at either one of us.”

…

Q: And why did you go inside?

A: Well he had a spear gun pointed at us. I thought just to subdue him virtually.”

16. In cross-examination, Mr Lewis said that he saw the appellant grab the woman and throw her inside, but did not see him punch her. He agreed that the appellant made it pretty clear that he didn’t want them on his property. He agreed that he normally wouldn’t go into somebody’s house uninvited, but on this day, he said their main concern was for the young lady. At the time they gained entry, he didn’t know where she was.

17. Mr Lewis agreed that they forced their way into the premises to subdue the appellant, even though they were not certain that the woman was at harm any more. He knew that the police had been called and did not see the spear gun go off. He denied that he had a machete and that they went in to teach the appellant a lesson.

18. In re-examination, he gave the following evidence:

“Q: Why did you force your way in?

A: Well at this stage we didn’t know what had happened to the young lady.

Q: And can you just say to the court again, when that spear gun was initially pointed at you?

A: Yeah.

Q: Why is it that you didn’t back away?

A: Well as I said, I didn’t want him just to have a pot shot at either of us which, you know, could have happened.”

19. Mark Lamb is the son of Stephen Lamb. He went to the back fence of the premises and saw his father and neighbour, Greg Lewis, in the back of the property. Mark Lamb saw the appellant throw a chair from the balcony towards them. He jumped over the fence after them and was asked why he proceeded towards the back door. He gave this evidence:

“A: Because at that time I saw him pick up a spear gun and I knew straight away, while he’s going to fire it at one of us, so that’s why we went to the back door. Greg at the time had said, ‘He’s got a spear gun. He’s got a spear gun’. The defendant proceeded to fire it and that’s when the three of us made our way into the back sliding door and restrained the defendant.

Q: And where was your father and Greg when the spear gun went off?

A: They were directly probably within almost an arm’s reach of him and he’s picked up the spear gun and he’s gone to fire it and obviously he’s fired it at close range.”

20. Mark Lamb gave evidence that he did not see the appellant biting his father.

21. In cross-examination, Mark Lamb said that he saw the appellant discharge the spear gun. He was standing directly behind his father when that happened. He denied that what in fact happened was that his father rushed the appellant and ended up coming into contact with the spear gun through his own momentum.

22. Mark Lamb also gave evidence that he saw a machete and denied that someone in the party had swung a machete and hit the appellant in the head with it.

23. Kelly Munce was called by the Crown. She was a neighbour who heard a girl screaming on the day. She heard what she described as a blood curdling scream and could hear her neighbour yelling out “Let her go. Let her go”. She saw the neighbours jumping over the fence to assist the woman and gave evidence that she saw the appellant come downstairs with what she thought was a shot gun. She called 000 and while she could not see the female, she could hear screaming. She heard her saying, “Beau, don’t. Beau, let me go. Beau, stop”.

24. In cross-examination, Ms Munce could not say when the screaming of the woman stopped. She described it as a lot of screaming and then yelling.

25. Mrs Lynette Lewis was asked what occurred at 2pm on 8 March 2015. She gave the following evidence:

“A: My husband and I was in the kitchen and I heard all this fighting going on. I then heard Ashley come out on her back balcony, she lit up a cigarette and Beau come out, he leant down and he was right in her face saying something, then he went back inside. He come back outside and he dragged her by the mouth, pulled her along the ground and came back inside and she was actually screaming out for help, desperately screaming.

Q: What was she saying?

A: ‘Leave me alone, just leave me alone” and just screaming ‘Help, help. Somebody help’”.

Q: So he dragged her inside and that’s when you heard her screaming?

A: Yes and then after that he was punching into her and that’s when she was really screaming out for help and I went out on the balcony then and I just yelled out, ‘Hey, what do you think you’re doing?’, and he never answered, of course. Then my husband came out and he yelled, ‘Hey mate, what do you think you’re doing?’. He was still punching into her really badly and then my husband ran down the stairs, jumped the back fence and then the chair came flying over the balcony. I seen Steve and Mark go over there then and yes.

Q: So when you say you saw him punching Ashley?

A: Yes.

Q: Where was that occurring?

A: In the back of the head and in the face, full on fist.

Q: With a fist?

A: Yes.”

26. In cross-examination, Mrs Lewis said that Ashley’s face was pretty badly damaged. It looked swollen on her cheek, but she did not have black eyes or cut lips.

Evidence of the appellant

27. The appellant gave evidence that at about 2pm he woke up and he and Ashley started arguing. He gave this evidence:

“A: But we started arguing. Me and her was yelling and screaming at each other. She went out on the balcony to have a cigarette. We were still arguing, yelling. I noticed that there was people listening to us arguing. I asked her to come back inside, she’s ignored me, screaming, yelling at each other. I’ve taken her by the hand, we’ve stood up. As we’ve walked inside, we’ve tripped over the blow up bed where I was asleep, because we’d been, we had been watching movies the night before. She started screaming her head off.

Q: Did you both end up falling over or what happened?

A: Yeah, we both fell over. I think I’ve tripped over and she’s tripped over me, yeah. After that I heard my fence getting jumped, because it’s right there, it’s only a little backyard.”

28. The appellant then gave evidence that he saw three men jump into his yard and he picked up a chair and started yelling at them, screaming, telling them to ‘fuck off’. He then threw a chair at them and he saw one of them with a machete.

29. The appellant then gave evidence that he told Ashley to run out next door and he ran to the front of his house to the garage, grabbed his spear gun to protect himself and went downstairs where these three men were at his sliding door. He went towards the door to see if it was locked and it popped open. He gave this evidence:

“A: It comes flying open. I’m screaming and yelling at them telling them to leave, get out of my house, using other swear words.

Q: Yes?

A: As they come in, the machete gets flung, so I lift up the – as they come running for me I lift up the spear gun. As I do that, I’m getting attacked, the machete comes across and clips my head.

Q: Yes?

A: And I get tackled to the ground.”

30. The appellant gave evidence that he was struck with the machete and that as the men opened his door he was yelling and screaming at them. He was asked whether he discharged the spear gun at the man or not and answered, “No”.

31. The appellant denied that he had put his hand in Ashley’s mouth and dragged her inside. He did concede that they were having a loud argument. After the incident, he never saw the machete again. He gave evidence that he did not shoot the man with the spear gun. He believed that he ran into it.

32. In cross-examination, the appellant denied grabbing Ashley. He said he held her by the hand and walked in and then tripped over. He said that she was bigger than him and it was impossible for him to drag her inside. He denied punching her and that she was screaming out for help. He gave evidence in cross‑examination that he threw the chair at them after he had seen the machete.

33. It was when he had seen the men with the machete that he went to his garage and got the spear gun. The garage was 20 metres from the upstairs balcony.

34. It was put to the appellant that instead of picking up the spear gun he could have just left the premises if he was concerned about his safety, and he answered:

“A: My safety? It’s my home. I’m protecting my home. Why would I leave?”

35. The appellant denied discharging the spear gun and intentionally biting Stephen Lamb.

36. In re-examination, he identified a wound above his eye that he got from being struck by the machete.

37. I note Ashley Becker, the victim in Count 1, did not give evidence.

The Appellant’s submissions

38. The appellant, through his solicitor, submitted that there was evidence that the appellant was acting in self-defence. He submitted there were inconsistencies between the evidence of Mr Lewis, who did not see the spear gun discharged, and Mr Stephen Lamb, and inconsistencies with the evidence of Ms Munce and Mrs Lewis.

39. Those inconsistencies, it was submitted, threw doubt as to the veracity of the Crown witnesses, particularly with respect to the assault regarding the bite wound.

40. It was submitted that the Crown had not negatived self-defence and that in biting Stephen Lamb, the appellant was acting in self-defence. It was submitted that the appellant was not shaken in cross‑examination and the court would therefore find that he acted in self-defence, both with respect to the bite and also the use of the spear gun.

41. Whether the spear gun was fired or not was in issue and the injury caused was consistent with Stephen Lamb rushing the appellant. On that basis, it was submitted that the Crown case was not made out.

The Crown submissions

42. The Crown submitted that this was not a case of self-defence. The use of the spear gun by the appellant constituted excessive force. Further, the five witnesses relied upon by the Crown were reliable witnesses and there was ample evidence to convict the appellant on each of the three charges.

Determination

43. Section 418 of the Crimes Act provides as follows:

“418 Self-defence-when available

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.”

Sub-section (2) provides relevantly as follows:

“(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person…

and the conduct is a reasonable response in the circumstances as he or she perceives them. “

44. Section 419 of the Crimes Act provides that:

“In any criminal proceedings in which the application of this division is raised, the prosecution has the onus of proving beyond reasonable doubt that the person did not carry out the conduct in self-defence.”

45. The questions to be considered by a jury if self-defence is raised are as follows:

1. Is there a reasonable possibility that the appellant believed that his conduct was necessary in order to defend himself?; and

2. If there was, is a reasonable possibility that what the appellant did was a reasonable response to the circumstances as he perceived them?

46. The Crown has the onus of negativing self-defence by proving beyond reasonable doubt either:

1. The appellant did not genuinely believe that it was necessary to act as he did in his own defence, or

2. That what the appellant did was not a reasonable response to the danger as he perceived it to be.

47. In Colosimo and Others v Director of Public Prosecutions [2006] NSWCA 293, Hodgson JA (with whom Handley and Ipp JJA agreed) set out the principles applicable in a case involving self-defence at [19] as follows:

“(1) By reason of the onus of proof provided by s 419, all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self‑defence. Thus, in relation to s 418(1)(a) there needs to be evidence capable of indicating a reasonable possibility of a belief by the accused that the conduct constituting the offence was necessary to defend himself or herself or others, and of a perception of circumstances such that the accused’s response was reasonable. However, the evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation.

(2) It is not essential that there be evidence from the accused as to the accused’s beliefs and perceptions. Evidence of circumstances from which inferences may be drawn as to the accused’s relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances.

(3) The defence may succeed even though the conduct to which the accused responds is lawful; but if this conduct is lawful, then this is relevant to whether the accused could have believed it was conduct in respect of which defence was necessary, or which threatened an unlawful deprivation of liberty; and relevant also to whether the accused's conduct could have been a reasonable response in the circumstances as the accused perceived them.

(4) A finding that an accused 'wanted to fight' does not of itself exclude self-defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence or to prevent unlawful deprivation of liberty. Furthermore, if a person believes that any risk of harm can be dealt with by withdrawing, then generally that belief would be inconsistent with a belief that conduct of the nature of an assault was necessary for defence."

48. In R v Katarzynski [2002] NSWSC 613, Howie J said:

“22 The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are:

(1) Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and

(2) If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.

23 The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either:

(i) That the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence, or

(ii) That what the accused did was not a reasonable response to the danger, as he or she perceived it to be.”

49. I am satisfied on the evidence of Greg and Lynette Lewis that the appellant committed a common assault on Ashley Becker. That evidence is corroborated by the evidence of other witnesses outlined above, which establish that Ashley Becker was screaming for the appellant to stop the assault, to let her go and was also calling for assistance. The defence of self-defence was not raised in respect of that charge and could not be raised. Rather, the offender gave evidence to the effect that he led Ms Becker back into the premises by her hand and that he tripped on a blow‑up bed causing them to fall to the ground. That evidence was just implausible, and could not be accepted in preference to the evidence of all other witnesses.

50. In accordance with the authorities set out above, in assessing whether the Crown has negatived the defence of self-defence in respect of the two other charges, I have to take into account the whole of the surrounding circumstances. Where the appellant created the situation by assaulting Ms Becker and continuing to assault her, I find that the three persons, Stephen Lamb, Mark Lamb and Greg Lewis, were entitled in those circumstances to enter upon his property to either apprehend him or cause him to desist from that criminal behaviour. I do not accept the appellant’s evidence that he removed himself to the garage to obtain the spear gun, nor his evidence that the three witnesses were sliding the door open. Rather, using a spear gun to ward off their presence was not a reasonable response to the danger that he perceived it to be. He was the original aggressor and I find that he could not have reasonably formed the belief that his actions were necessary in self-defence. Rather than decline further conflict or quit the use of force or retreat from it, the appellant engaged in an entirely unreasonable response by discharging the spear gun.

51. I accept the evidence of both Mr Mark Lamb and Mr Stephen Lamb, that the spear gun was discharged and it deflected from the torso of Mr Stephen Lamb. The evidence of Stephen Lamb further established that the appellant bit his left forearm. I am satisfied that the Crown has negatived self-defence in relation to that charge. That was not a reasonable response to the force being used to apprehend the appellant at that time. He could not have genuinely believed that it was necessary for him to act by biting Stephen Lamb in his own defence and further, I find that it was not a reasonable response to the danger as he perceived it to be at that time.

52. I am satisfied that the Crown has made out each offence beyond reasonable doubt and that the evidence establishes that the appellant committed each of the three charges. I am also satisfied that the Crown has negatived self‑defence and that there was no reasonable possibility the appellant believed that his conduct was necessary in order to defend himself, nor was there a reasonable possibility that what the appellant did was a reasonable response to the circumstances as he perceived them.

53. For those reasons, I dismiss the Appeal.

Orders

54. I make the following orders:

1. The Appeal is dismissed.

2. The learned Magistrate’s order convicting the appellant is confirmed.

**********

Decision last updated: 09 December 2015