Warren Brent Landsman v R [2015] NSWDC 223

District Court New South Wales

Medium Neutral Citation: Warren Brent Landsman v R [2015] NSWDC 223 Hearing dates: 15 September 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal dismissed. Catchwords: Conviction appeal; circumstantial case; identification evidence Legislation Cited: Crimes Act 1900 (NSW) s 59 Criminal Procedure Act 1986 (NSW) s 133 Evidence Act 1995 (NSW) ss 38 and 165 Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Charara v The Queen [2006] NSWCCA 244 Mohan v R [1967] 2 AC 187 R v Clough (1992) 28 NSWLR 396 R v Hillier (2007) 228 CLR 618 R v Phan (2001) 53 NSWLR 480 Category: Principal judgment Parties: Warren Brent Landsman (Appellant) Director of Public Prosecutions (Crown) Representation: Counsel: P Lange (Appellant) K Owens (Crown)

Solicitors: Alexanders Lawyers (Appellant) Director of Public Prosecutions (Respondent) File Number(s): 11/347713 Publication restriction: Nil

Judgment

Introduction 1. The charges that are the subject of this appeal are two offences pursuant to s 59 of the Crimes Act 1900 (NSW) of assault occasioning actual bodily harm. The section provides as follows: "59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons." 1. There is no appeal in respect of the penalty imposed by the learned Magistrate. 2. The appellant was convicted by the learned Magistrate on 7 December 2012. The appeal was heard on 15 September 2015. 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 The Queen [2006] NSWCCA 244 per Mason P at [18]. 3. I have also had regard to the exhibits tendered in the Local Court, and I have read the remarks of the learned Magistrate in her judgment of 7 October 2012. 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.