Mitchell Cosh v R [2019] NSWDC 110

District Court New South Wales

Medium Neutral Citation: Mitchell Cosh v R [2019] NSWDC 110 Hearing dates: 26 March 2019 Decision date: 28 March 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal dismissed Catchwords: Self-defence Legislation Cited: Crimes Act 1900 Cases Cited: Charara v R [2006] NSWCCA 244 Category: Principal judgment Parties: Mitchell Cosh (Appellant) Director of Public Prosecutions (Crown) Representation: Counsel: J Kellaway (Appellant)

Solicitors: E Navea (Crown) File Number(s): 18/115267 Publication restriction: Nil

Judgment ON APPEAL 1. On 28 August 2018, the appellant was convicted of an offence pursuant to s 59(1) of the Crimes Act 1900 of recklessly cause grievous bodily harm following a hearing in the Local Court. 2. The appellant has appealed the conviction, however, the appeal is limited to whether the learned Magistrate, in finding that the Crown had negatived a defence of self-defence pursuant to sections 418 and 419 of the Crimes Act 1900, correctly applied the law based on the facts as he found them. A challenge is also made to one finding of fact. In order to determine that matter, it is necessary to set out a short summary of the evidence before the learned Magistrate. 3. The appeal is by way of a rehearing based on the transcript of the evidence before the learned Magistrate and the exhibits in those proceedings. In determining the appeal, I am to apply the principles governing appeals for a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence and the exhibits (in this case including the CCTV footage of the incident), 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].