There is a thin line between using self defence and being arrested and charged with affray.
If you get involved in a fight in the street, bar, pub or any other place public or private you run the real risk of being charged with the offence of affray under section 93C of the Crime Act NSW.
Affray is defined as
(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3) For the purposes of this section, a threat cannot be made by the use of words alone.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Affray may be committed in private as well as in public places.
As you can see the maximum penalty for the charge of affray (Section 93C of the Crimes Act) is ten years imprisonment, something to be avoided.
A possible defence to affray is self defence, however how you react to the impending threat and how you defend yourself will have a bearing on the outcome of a court hearing if you are arrested and charged.
A crucial consideration for the court will be whether or not you activity and willingly engaged in the fight/threatened violence or where you just defending yourself?
This can be deemed by a court that you have activity engaged in the fight, and therefore threatened violence even though at this point no punches have been thrown. You and the other person may be in a stand off or moving around each other simply by the fact that you have also adopted a fighting stance you have may have satisfied part (1) of section 93C (above) and therefore your ability to claim self defence is reduced, it not be totally lost but it will be harder to argue.
It is recommended that in this situation you adopt a defensive or passive stance (see photo to the right). As you can see the defender on the right has his hands on an open/defensive/passive position. This is very important if there witnesses present as you can claim that you have not engaged in the fight you are trying to defuse the situation.
If you are then charged with affray your defence will be that you did not engage in the fight until you hand no option but to defend yourself after the attacker had thrown the first punch.
You can still claim self defence if you have to execute the first strike in the real apprehension that you were in danger of physical injury or worse and this was the only thing you could do to avoid that injury so long as you can show that you were not the aggressor or the initiator of the fight or the violent situation. You cannot claim self defence if you have started the fight, things have gone bad (which they usually do) and now you are defending yourself.
In a conflict or threatened conflict, we recommend that you use the SMART © defence
S - Step back - the most important part of any self defence. Step back out of punching & most importantly knife range.
M- Move your hands up to a defensive/passive position and try to communicate with the other person
A - Access the situation, look for a mean of escape or the best defence, check to see if he/she has weapons or back up
R- Remain calm, remember your training
T - Think about your options and then execute - communicate, defend or escape
In this situation you must also remember the following:
1. Use of reasonable force.
2. If arrested what you should or should not say.
For advice on this please refer to our previous post - Martial Law - the aftermath of self defence
The author of this post, Phil O’Brien is a solicitor with Sydney firm Teddington Legal and a martial arts instructor who has taught reality based self defence in Western Sydney for the past twenty five years, he has extensively studied both the physical and psychological elements of self defence.
Should you require the services of a solicitor in regard to the use of self defence or any other legal matters, Phil can be contacted at firstname.lastname@example.org or via www.teddingtonlegal.com.au or directly on 0409 078 322
This is general information only; it does not replace advice from a qualified solicitor in your state or territory. It is recommended that should require legal advice you should seek advice from a suitability qualified and experience legal practitioner in your state.