HXJ was involved in a dispute with a fellow attendee at a family gathering in a suburb of Sydney. After stepping outside the property and walking to a nearby empty lot with a number of other attendees, the dispute escalated. The police alleged that HJX punched one of the other attendees, causing actual bodily harm, of immediate pain and a swollen lip.

The police further alleged that HXJ and NJ, another attendee, shouted and began to punch each other. The police alleged that the fight continued and further attempts at stopping it proved unsuccessful. The police alleged that with the arrival of police, HXJ and NJ fled the location via the back fence.

Sustaining a deep cut in the escape, HXJ attended Hurstville Police Station seeking medical treatment. As a result of being admitted to hospital, he was not conveyed back to police custody nor read his rights under Part 9 of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW). This meant that the police could not interview him at the time.

The police obtained statements from a number of witnesses, including the attendee victim who was punched.

HXJ was charged with two offences; assault occasioning actual bodily harm with regards to the punch causing a swollen lip and charged with affray as a co-accused to NJ.


The key witness and victim of the punch chose not to attend the proceedings and was therefore not able to be cross-examined and his statement tested in Court. As a result of the lack of evidence, our solicitor negotiated with the Police Prosecutor to withdraw the charge against HXJ of assault occasioning actual bodily harm.

A defended hearing was conducted with regard to the affray charge, including the co-accused MJ. One witness to the affray was cross-examined, HXJ gave evidence, a witness for HXJ gave evidence and the co-accused NJ gave evidence.

Additionally, evidence was raised about HXJ’s character to support the credibility of his denial of guilt, pointing to his complete lack of a prior criminal record.

Our solicitor successfully submitted to the Court that there wasn’t enough evidence to convict HXJ of affray beyond a reasonable doubt in light of the competing versions given by the witnesses, HXJ and NJ.

Contact O’Brien Criminal and Civil Solicitors on (02) 9261 4281 to set up a free appointment with the defence lawyers in our Sydney office. 24 hour phone / text: 0421 373 961

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