Alan Leslie Cotterill v R; Alan Peter Cotterill v R [2015] NSWDC 291

District Court New South Wales

Medium Neutral Citation: Alan Leslie Cotterill v R; Alan Peter Cotterill v R [2015] NSWDC 291 Hearing dates: 26 November 2015 Decision date: 03 December 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeals dismissed Catchwords: Affray; self-defence Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 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: Procedural and other rulings Parties: Alan Leslie Cotterill (First appellant) Alan Peter Cotterill (Second appellant) C Hodgeman (Crown) Representation: Counsel: C Hodgeman (Crown) T M Healy (Appellants) File Number(s): 14/7647714/102044 Publication restriction: Nil

Judgment ON APPEAL

Introduction 1. Two appeals were heard together arising out of orders made by the Local Court at Wyong on 22 June 2015, that each of the appellants were guilty of the offence of affray pursuant to s 93C(1) of the Crimes Act 1900. 2. The appeals were heard together as a matter of convenience. They arise out of the same course of conduct at the Shelly Beach Golf Club on 5 November 2013. The first appellant, Alan Leslie Cotterill, is the father of the second appellant, Alan Peter Cotterill. 3. The appeal in each matter relates to the conviction of the appellants. There is no appeal as to the severity of any sentence imposed on them. The appeal was heard on 26 November 2015. 4. Prior to the hearing, an application was made by each appellant by way of Notice of Motion for leave to call fresh evidence on the appeal. There was no opposition by the Crown to leave being granted, and the Court granted leave to the appellants to rely on a further CD and USB which provided a reformatting of certain CCTV footage taken at the Shelly Beach Golf Club on the date of the incident. 5. That evidence became exhibit 1A and 1B on each appeal. 6. The appeal is to be otherwise 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 learned Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18]. 7. 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.