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…