On 12 October 2026, our Principal Solicitor, Ali El-Darwich, appeared on behalf of a client before Penrith Local Court in relation to a charge of affray, contrary to section 93C(1) of the Crimes Act 1900 (NSW).
The charge arose from a physical altercation involving our client. The incident was captured on CCTV footage, and police alleged that our client had initiated the physical confrontation by being the first to strike the other individual involved.
Despite that allegation, ED Legal identified a number of significant issues with the prosecution case.
Before the matter came before the Court, Mr. EL-Darwich prepared detailed written representations to NSW Police seeking the withdrawal of the charge.
One of the issues raised concerned self-defence.
An allegation that an accused person acted first does not, by itself, necessarily exclude self-defence. The relevant questions include whether the accused believed their conduct was necessary to defend themselves and whether their response was reasonable in the circumstances as they perceived them.
ED Legal submitted that, having regard to the circumstances surrounding the incident, the prosecution could not exclude the possibility that our client’s conduct was consistent with self-defence.
The representations also challenged whether the prosecution could establish each element of affray beyond reasonable doubt. In particular, ED Legal raised an issue as to whether the circumstances were such that a person of reasonable firmness, if present at the scene, would fear for their personal safety.
The broader submission was that the prosecution faced difficulties establishing affray, particularly where the alleged violence was confined to the persons directly involved and the circumstances did not necessarily support the characterisation of the incident as an affray rather than a more limited physical altercation.
Following consideration of the representations made on our client’s behalf, NSW Police withdrew the affray charge.
Our client was therefore no longer required to defend the charge at a contested hearing.
This result demonstrates the importance of looking beyond the surface of CCTV footage and considering the legal context in which the alleged conduct occurred. The fact that footage appears to show an accused person initiating physical contact does not necessarily determine whether that conduct was unlawful.
A proper assessment requires consideration of the circumstances as a whole, including the possible application of self-defence and whether the prosecution can establish each element of the charged offence beyond reasonable doubt.
If you have been charged with affray or another assault-related offence in NSW, ED Legal can review the prosecution case, advise you on the available defences and represent you in court.
See our Affray and Assault services, or contact ED Legal on 0416 849 997 to discuss your matter.
Past results do not guarantee a similar outcome. Every case depends on its own facts and circumstances.
