Affray charges withdrawn against S&B clients

Good evening readers.

Today we are able to report that Affray charges against our clients were recently withdrawn by the NSW Police prior to a hearing at the Liverpool Local Court. Affray charges (section 93C of the NSW Crimes Act) carry a maximum sentence of ten years imprisonment.

Brief Facts
Our clients were parking their vehicle in a Liverpool carpark when another male began yelling abuse. The clients ignored the abuse and continued to park their car. Upon walking towards the exit of the carpark, the abusive male and his partner approached our clients where a further argument began. The male's female partner began to film the incident on her mobile phone. A few seconds later, the male's partner sprayed a can of deodorant in the face of one of our clients at which point the abusive male punched our client in face. A fight ensued which lasted about 1-2 minutes. Several bystanders broke up the fight and a few minutes later Police attended the scene. Our two clients and the other male were arrested and taken to Liverpool Police Station where they were interviewed. Police were also shown video footage from the female's mobile phone which purportedly showed that our clients had started the fight and had assaulted the male and his female partner. No persons were charged on the day in question.

Approximately 4 weeks later, court attendance notices for the offence of Affray were issued to both of our clients as well as the abusive male.

After receipt of the brief of evidence and during preparation of the defence by Sylvester and Browne Lawyers, a review of the subject mobile phone footage revealed that the abusive male's assault allegations had in fact been fabricated. Further, the version of events given by the male to Police during his record of interview was completely inconsistent with the video footage. It was also clear that the female had in fact started the incident by spraying a can of deodorant into the eyes of one of our clients.

On the day of the hearing, the male failed to attend court despite being subpoenaed by the Police. A medical certificate was produced and the Police subsequently sought to adjourn the hearing. Interestingly, the male's female partner, who had in fact started the fight by spraying deodorant into the eyes of our client, was not subpoenaed to give evidence. The Police had also failed to obtain a statement from the female despite the fact that the Police intended to rely upon the woman's mobile phone video to prove their case. The adjournment application by the Police was subsequently rejected by the Magistrate.

Based upon the failure of the Police Prosecutor to obtain an adjournment together with evidentiary issues raised above, the Police Prosecutor withdrew the charges and the charges were formally dismissed against both of our clients.

Most concerning about the case was the failure of the Police officers involved to properly and thoroughly investigate the matter. If they had paid closer attention to the video footage provided to them by the alleged assault victims and compared it to the answers provided by the male in his record of interview, then it would have been quite clear that the allegations were baseless and the subject charges would not have been preferred in the first instance. Further, the failure of the Police to obtain a statement from the female regarding the incident or to cover the continuity of the subject mobile phone video evidence is inexplicable and borders upon incompetence. At the very least, the female should also have been charged with Affray or assault.

What emanates from this case and other similar cases is that Police have become over-reliant on the charge of Affray in matters involving often minor public assaults involving two or more persons. Quite clearly, Affray charges were designed by the Parliament of NSW to address violent assault incidents similar to the bikie melee that occurred at Sydney Domestic Airline Terminal a few years ago which also resulted in the death of one of the males.  In our opinion, Police management will need to address this issue sooner rather than later or they will likely be on the receiving end of some large cost orders dished out by the courts.