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]. The background to the offending 1. The appellant and victim worked together as plant operators employed by RMS. On 10 April 2018 at approximately 12 noon, a communication took place over two-way radio at their workplace between the appellant and a supervisor, Mr Jamieson. During that communication, the victim intervened by addressing Mr Jamieson, during which, he referred to the appellant as a "dickhead", or a "cockhead". The victim had made it clear that those comments were directed to the appellant. They were overheard by the appellant and other employees who had access to the two-way radio band. 2. There was evidence that whilst the men had worked with each other for some time, there had been a cooling of their relationship prior to this incident. 3. There was no further communication between the appellant and the victim that day. After work, at approximately 5pm, the victim attended a service station on his way home and was re-fuelling his work vehicle. What happened next was the subject of CCTV footage which showed that the appellant arrived at the same service station, stopping his vehicle behind that of the victim. The appellant alighted from his vehicle and approached the victim, who was in the process of putting the nozzle back into the petrol bowser. The two men came face to face, and it is the appellant's case that the victim either leant in or stepped towards him. Within a second of that happening, the appellant struck the victim to the right side of his face. There is no issue that the victim suffered a really serious injury, constituting grievous bodily harm. 4. On the appeal, the CCTV footage was played several times. The appellant asserted that when played at its normal speed, the footage was in fact recording what had happened at 133% above real time. For that reason, the relevant footage was played frame by frame in an endeavour to establish that the victim, prior to being struck, had stepped towards the appellant as asserted by him. It should be noted that the quality of the CCTV footage was not of high resolution, and further, that the view of the two men was obscured for substantial parts of the relevant footage by structures including the petrol bowsers. The Magistrate's finding on self-defence 1. The learned Magistrate in applying the test in s 418 of the Crimes Act 1900 referred to R v Katarzynski [2002] NSWSC 613. He said: "The questions that had been asked are is there a reasonable possibility that the accused believed that the conduct was necessary in order to defend himself. In answering that question, all of the accused's personnel characteristics at the time of the conduct may be considered."(sic) 1. The Magistrate then referred to the cooling of the relationship between the two men and the comments made by the victim over the two-way radio earlier that day. As to the CCTV footage, the only movement the Magistrate recorded that he could see was the victim moving towards replacing the filler cap on his vehicle. 2. As the appellant approached the victim he said, "What's the problem, Doobie?" The victim replied by saying that he would make a problem and further said, "I'm going to jump all over your fucking head". The Magistrate found that they were about one metre apart. The appellant stepped towards the victim, the appellant was bigger than the victim, then the appellant hit him. The Magistrate found that the appellant hit him because if he did not, the appellant said he would be thrown around like he was for the next 30 seconds or so, as shown on the CCTV footage. 3. The Magistrate went on to state: "The whole situation of what occurred at the petrol pumps must be viewed in the context of Mr Cosh driving into the service station to confront Mr Smith. He gave evidence that his efforts were to resolve the situation that he was aware was existing between he and Mr Smith away from the workplace for a number of reasons. The whole case, it seems to me, turns on the question, is there a real possibility that the accused believed that conduct was necessary in order to defend himself?" 1. The Magistrate went on to find that he accepted the appellant's version of what was said between the two men, as outlined above. He went on to say: "The next issue is then, is there a reasonable possibility? The answer to that question in my view should be yes. The second question then is, if so, is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as he perceived them? The answer to that question in my view is no. The reason that it is no is that the court places a great deal of reliance on what is depicted in the closed circuit television footage and there may have been words spoken, but I am not satisfied on the balance that indeed Mr Smith was stepping towards Mr Cosh, and then to strike in those circumstances was not proportionate, given what occurred and the fact he had driven into the service station to approach the victim with a view to sorting the workplace issue out. It can be seen to happen very quickly, and if it were the case that I was satisfied on balance that there was a step towards Mr Cosh as alleged, which I firmly say for the purpose of these reasons, is in my view not seen on the footage, it may be a different matter within those circumstances. It is a disproportionate response, self-defence is negatived." 1. It is that reasoning in respect of the second limb of the defence of self‑defence that the appellant challenges in this appeal. The challenge includes the Magistrate's finding of fact that the CCTV footage did not show the victim moving towards the accused immediately before the accused hit him. Determination 1. The law recognises the right of a person to act in self-defence from an attack or threatened attack. This right arises when a person believes that his or her acts, in this case the appellant striking the victim, was necessary in order to defend himself, and where what the appellant did was a reasonable response in the circumstances as he perceived them. 2. Although self-defence is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the appellant's acts, in this case, the appellant's action of punching the victim to the right side of his face, was done by the appellant in self-defence. The Crown may do this by proving beyond reasonable doubt either: 1. That the appellant did not genuinely believe at the time of his act in relation to Mr Smith that it was necessary to act as he did in order to defend himself, or 2. That the appellant's conduct in relation to Mr Smith was not a reasonable response in the circumstances as the appellant perceived them to be. 1. For the Crown to eliminate self-defence as an issue, it must prove beyond reasonable doubt one or other of these matters. It does not have to prove both of them. If the Crown has failed to prove at least one of these two matters, the appropriate verdict would be not guilty. In this appeal, it is not contended that the learned Magistrate was wrong in determining that the Crown had not proved the first limb. 2. As to whether the appellant may have personally believed that his conduct was necessary for self-defence, the court must consider the circumstances as the appellant perceived them to be at the time of that conduct. The court must take into account any extraordinary attribute of the appellant which bears upon his perception of those circumstances and which had a bearing on any such belief he may have formed. 3. It is his perception which must be considered in determining whether what he did was a reasonable response in those circumstances. The matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as the appellant found himself to be in. 4. On the first limb, if the court finds that the appellant or that it was reasonably possible that he may have had that belief, it matters not that his belief might have been mistaken. If, however, the Crown establishes beyond reasonable doubt that the appellant did not personally believe that his conduct was necessary for his defence, then the Crown will have succeeded in eliminating self-defence. 5. If I am then satisfied that the appellant had, or that it was reasonably possible that he may have had, a belief personally that his conduct was necessary for his defence, then I turn to the next question, namely, whether the Crown has nevertheless proved beyond reasonable doubt that the conduct of the appellant was not a reasonable response to the circumstances as perceived by the appellant. It is this question which is in issue in this appeal. 6. Here again, even if the appellant was honestly mistaken in his perception of those circumstances, provided I am satisfied that it is or was his perception of them, and that response was reasonable in those circumstances, the Crown would have failed to eliminate self-defence and the appellant must be found not guilty of the charge. The Crown will only succeed if it has satisfied the court beyond reasonable that the conduct of the appellant was not a reasonable response in the circumstances as the appellant perceived them to be at the time of the conduct in question. 7. Having viewed the CCTV footage carefully, a number of times, including frame by frame, I could not find that the learned Magistrate was in error by finding that the victim was not stepping towards Mr Cosh immediately before the appellant struck him. That finding, in the context where the appellant had driven into the service station to approach the victim and confront him with a view to sorting their workplace issue out, in circumstances where the victim was completing refuelling his vehicle and replacing the nozzle in the bowser as the appellant approached, means that the Crown has proved beyond reasonable doubt that the appellant's conduct by striking the victim was not a reasonable response in the circumstances as the appellant perceived them to be. It is not to the point that a struggle between the two men ensued after that punch. 8. I therefore find that the Crown has, on the evidence before the learned Magistrate, eliminated self-defence as an issue. The appeal will therefore be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2019