The Facts

Former students attend party

A recent case in Sydney revolved around the question of self defence.

In December 2019, two years after completing their HSC, about 40 former students from a leading high school on Sydney's North Shore attended a gathering at the house of one of them.

In addition to plenty of drinks, some students had brought their "plus ones" along, and so, by about 8.30pm the party was in full swing.

During the evening, several groups naturally formed and there was a lot of cross-group interaction.

While almost everyone had been drinking alcohol, none were said to be obviously drunk and none had driven to the party.

Defendant has altercation with Mr A and Mr J during party

At about 11.00pm, a group of about nine people, including, a Mr A, Mr J and Mr W decided to go to McDonalds to eat, having consumed whatever food was on offer at the party.

As this group was leaving the house, they walked through the lounge room, where the defendant and a young woman, Ms H, were sitting together talking.

An altercation broke out between the defendant, Mr A and Mr J.

A few others from the departing group were also involved in the altercation, but only in a minor way.

Mr A, Mr J and the defendant were all injured in the altercation.

Ms H was not injured, as she was dragged out of the melee by Mr W.

The police were called, but by the time they arrived the participants in the altercation and the witnesses to it had left the party.

Mr A and Mr J make statements to police and defendant consults Legal Aid

The following day, Mr A and Mr J, accompanied by their mothers, attended the local police station and gave statements with their version of what happened.

Police resources were heavily depleted due to Covid duties at the Victorian border.

However, when officers became available a few months later, they followed up the statements by seeking out the defendant.

The defendant then consulted the Legal Aid website and spoke to someone at its advice line.

He was advised not to undertake an interview if requested by police, and he followed that legal advice.

Police charge defendant with assault and he pleads not guilty

Soon after, the defendant was charged with Affray.

This charge was later withdrawn and replaced with Assault Occasioning Actual Bodily Harm on Mr A and Common Assault on Mr J.

The defendant pleaded not guilty to these charges, claiming he acted in self defence.

case a - The case for the prosecution

case b - The case for the defendant

  • The defendant did not act in self defence. He didn't have a genuine belief that he needed to defend himself and Ms H and his response was not reasonable in the circumstances.
  • The defendant and Ms H had been in a relationship until they split up in early 2019.
  • Then, in the months leading up to the party, Ms H started dating Mr W, who posted salacious images of them online. This made the defendant jealous, and when he encountered Mr W in the lounge room at the party, he started a fight by kicking Mr W.
  • Believing that Mr W was in immediate danger of a further attack by the defendant, Mr A and Mr J came to Mr W's defence. The defendant then assaulted Mr A and Mr J by punching and kicking them, not just by swinging his arms around in windmill fashion as he claims. Mr A suffered a broken nose and other facial injuries and Mr J suffered severe bruising to his face, ribs, and chest.
  • Given that the defendant was not acting in self defence, the court must find him guilty of all charges.
  • I genuinely believed that I needed to defend myself and Ms H against the attack by Mr A and Mr J and my response was reasonable in the circumstances. I acted in self defence.
  • Ms H and I had previously split on amicable terms. At the party we were sitting quietly in the lounge room having a friendly conversation, when suddenly at least three young men rushed into the room and confronted us.
  • I have no issue with Mr W and I did not start a fight with him. As some witnesses have made clear, there was no physical interaction between me and Mr W.
  • Rather, I had concerns for Ms H, as I believed that I was going to be attacked by Mr A and Mr J, which is in fact what happened. As Ms H has testified, Mr W came into the room flanked by Mr A and Mr J, and I stood up because they were standing in front of us in a threatening manner.
  • It all happened very quickly. To defend myself I swung my arms in a windmill fashion, with my head down.
  • In the attack, I suffered extensive bruising to my body and face and I lost an important keepsake gold chain that had belonged to my now deceased father. As my mother has testified, my clothing was torn and bloodstained when she found it in the washing basket the day after the party.
  • Ms H has also testified that Mr W later said to her words to the effect that the fight "would not have happened if A and J had not rushed in."
  • Given that I was acting in self defence, the court must find me not guilty of all charges.

So, which case won?

Cast your judgment below to find out

Nick Burton
Criminal law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.