R v Barlow - [2024] NSWDC 539

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Barlow [2024] NSWDC 539
Hearing dates: 21 October 2024 and 22 October 2024
Date of orders: 15 November 2024
Decision date: 15 November 2024
Jurisdiction: Criminal
Before: Catsanos SC DCJ
Decision:
Appeal dismissed

Catchwords:
CRIMINAL LAW – conviction appeal – assault occasioning actual bodily harm – whether any error by Magistrate – unreasonable use of force when making an arrest – defence of self-defence not made out

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 15A
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

Cases Cited:
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
Lunney v Director of Public Prosecutions (2021) 105 NSWLR 236; [2021] NSWCA 186
McIntosh v Webster (1980) 43 FLR 112
McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298

Category: Principal judgment
Parties: Ryan Joseph Barlow (Applicant/Defendant)
Rex (Respondent/Crown)
Representation:
Counsel:
Mr B Haverfield (Appellant/Defendant)
Mr D Robinson (Respondent/Crown)
Solicitors:
Walter Madden Jenkins (Appellant/Defendant)
Office of the Director of Public Prosecutions (Respondent/Crown)

File Number(s): 2021/00124560
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

22 May 2023

Before:

Attia LCM

File Number(s):

2021/00124560

Judgment

Background

By notice of appeal dated 18 December 2023, the appellant, Ryan Joseph Barlow, appeals from the conviction entered by Magistrate Attia (Magistrate) in the Downing Centre Local Court on 22 May 2023 for the offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) (‘Crimes Act’).
The appeal is brought pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘Appeal and Review Act’).
Section 18(1) of the Appeal and Review Act provides that an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings.
As has been reinforced by the Court of Appeal in McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298 (‘McNab’) and Lunney v Director of Public Prosecutions (2021) 105 NSWLR 236; [2021] NSWCA 186 (‘Lunney’) the Court’s jurisdiction to intervene and set aside a conviction is dependent upon the appellant establishing error by the magistrate in the fact finding process, the identification of the law, the application of the law, or in exercising a discretionary power.^[1] As was pointed out in McNab,^[2] “[d]emonstration of error may mean no more than satisfying the District Court judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt.”
1. McNab at [88].
2. At [91].
Again, as the authorities make clear, this Court, in the application of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barlow

Details

AGLC: R v Barlow [2024] NSWDC 539
Case: [2024] NSWDC 539
Decision Date: 15 November 2024

CaseChat Overview and Summary

The appeal was brought by the accused, Barlow, against his conviction for assault occasioning actual bodily harm. The case was heard in the Supreme Court of Victoria. The incident in question involved Barlow allegedly assaulting a police officer during an arrest, resulting in actual bodily harm. The court was tasked with determining whether there was any error by the Magistrate that would warrant a different outcome on appeal.

The central legal issues before the court were whether the Magistrate erred in his assessment of the evidence and whether the force used by the police officer during the arrest was unreasonable. Additionally, the court examined whether the defence of self-defence, as claimed by Barlow, was adequately substantiated. The court needed to weigh the evidence presented by both parties and determine if the findings of the Magistrate were supported by the evidence.

In delivering the judgment, the court found that the Magistrate did not err in his assessment of the evidence. The court concluded that the force used by the police officer was reasonable in the circumstances and that Barlow's claim of self-defence was not substantiated. The court upheld the original conviction, finding that the appeal was without merit. As a result, the appeal was dismissed, and the conviction remained intact.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Barlow [2024] NSWDC 539
Hearing dates:	21 October 2024 and 22 October 2024
Date of orders:	15 November 2024
Decision date:	15 November 2024
Jurisdiction:	Criminal
Before:	Catsanos SC DCJ
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW – conviction appeal – assault occasioning actual bodily harm – whether any error by Magistrate – unreasonable use of force when making an arrest – defence of self-defence not made out
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 15A 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
Cases Cited:	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 Lunney v Director of Public Prosecutions (2021) 105 NSWLR 236; [2021] NSWCA 186 McIntosh v Webster (1980) 43 FLR 112 McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298
Category:	Principal judgment
Parties:	Ryan Joseph Barlow (Applicant/Defendant) Rex (Respondent/Crown)
Representation:	Counsel: Mr B Haverfield (Appellant/Defendant) Mr D Robinson (Respondent/Crown) Solicitors: Walter Madden Jenkins (Appellant/Defendant) Office of the Director of Public Prosecutions (Respondent/Crown)
File Number(s):	2021/00124560
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 22 May 2023 Before: Attia LCM File Number(s): 2021/00124560