Acting in defence of another person. What does the law say?

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shopping centre

Imagine this. Your teenage daughter is at the shopping mall with friends after school. She calls to tell you she is being beaten up. By a grown woman.

As the story unfolds, you find out that she and another girl around the same age got into an argument. At some point, the altercation became physical. The other girl’s mother then stepped in and began to hit your daughter.

When you rush to the mall, you see that your daughter has bruises to her face. A swollen lip. The whole incident has been recorded on CCTV. You both go to the police, but you are told they won’t press charges because the woman was acting in defence of her daughter.

This incident is reported to have recently occurred in a town in Northern New South Wales.

Third-party self-defence

The law of self-defence is contained in section 418 of the Crimes Act 1900 (NSW).

The section states that a person is not criminally responsible for their actions if he or she believes they were carried out in self-defence, and the conduct is a reasonable response in the circumstances as he or she perceives them.

Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.

The defence is available where the conduct is necessary to:

(a) defend himself or herself or another person, or

(b) prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) protect property from unlawful taking, destruction, damage or interference, or

(d) prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

This extends to the situation where a person steps in to defend another person against an assault.

However, section 420 of the Act makes clear that self-defence is not available where a person uses force that involves the intentional or reckless infliction of death only to protect property or prevent a trespass.

And section 421 provides that where a person uses excessive force to defend themselves or another, including to prevent the unlawful deprivation of liberty, and that force results in their target’s death, the person will be criminally responsible for manslaughter rather than murder provided that he or she believed the conduct was necessary in the circumstances.

Significantly, section 419 stipulates that if evidence of self-defence is raised, the prosecution must then prove beyond a reasonable doubt that the actions did not amount to self-defence. If the prosecution is unable to do this, the defendant must be acquitted.

Back to the case of the shopping mall fight…

The upshot of the case involving the fight between the teenage girl’s was reported to be that the police ended up charging the bruised teen with affray, on the basis that her actions leading up to the other girl’s mother’s intervention amounted to a threat of unlawful violence.

Affray is an offence under section 93C of the Act, which comes with a maximum penalty of 10 years in prison if the case is referred to the district court, or two years if it stays in the local court.

The offence involves using or threatening to use unlawful violence towards another where the conduct would cause a “person of reasonable firmness” present at the scene to fear for his or her personal safety.

There does not need to be any physical contact and the offence can occur in both public and private settings.

Curiously, no other person actually needs to be present for an affray to occur. However, it cannot happen through words alone – there must be some type of act which is seen as a threat of, or use of, unlawful violence towards another.

Affray is what’s known as a ‘Table 1 offence’, which means it is tried in the local court unless the prosecution or defence chooses to have it ‘committed’ to the district court.

Charge with affray?

If you have been charged with an affray, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first consultation with an experienced criminal defence lawyer.

We travel to courts throughout New South Wales and can offer fixed fees for all affray cases.

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