Green & Associates Solicitors Get Serious Criminal Affray and Offensive Conduct Charges Dropped Before Court or Service of Brief of Evidence

October 15, 2014

Protesters throwing flowers

Today we received confirmation that both sequences against our client would be formally withdrawn at Court on the first mention, and that the Police prosecutor would mention our appearance, meaning neither we nor our client ever had to attend Court. 

The first sequence (charge) was pursuant to section 93C of the Crimes Act 1900 (NSW), and carried a potential sentence of imprisonment for 10 years. The second sequence was pursuant to section 4(1) of the Summary Offences Act 1988 (NSW), and carried a potential sentence of imprisonment for 3 months and / or a fine of 6 penalty units. 

The first charge may be successfully prosecuted if a person uses or threatens unlawful violence towards another and their conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. The second charge could be made out if a person conducts themselves in an offensive manner in, near or within view or hearing from, a public place or school.

In our case, it was not disputed that our client was involved in a physical fight (“unlawful violence”), and that a screaming match ensued, during which threats were made, all on a public road in the presence of “reasonably firm” witnesses. However, both sequences were withdrawn before even the Police brief of evidence was served, and neither us nor our client had to go to Court in relation to the matter at all.

So how did we beat it? We’ll tell you part of the story… 

On receiving the Court Attendance Notice (“CAN”) we immediately went about drafting what is known as “representations”. Just as with a commercial or civil case, where privileged offers can be made to negotiate an outcome, representations are essentially the same thing. What most people don’t know is that, in some cases, a defendant in criminal proceedings may also be able to get an order that the Police or prosecution pay their legal costs, again as with commercial or civil cases. If you have a strong case and representations are put to the prosecution early enough, if the prosecution is continued, the costs risk grows. This provides a commercial incentive to withdraw charges and / or to negotiate plea deals for lesser charges and / or lighter sentences, depending on the particular case. Of course, building a strong case is another issue, and often involves a careful and sometimes complex analysis and construction of judicial interpretation of the relevant statutory provision(s) underpinning the CAN, but the upside is that there could be much more required to prove the charge, and therefore your prospects of success in defence could be higher than you might originally think.

It just goes to show that a case is not always as difficult as it might seem when you read a CAN or first speak to Police. Don’t just plead guilty, and don’t assume you need to give statements or say anything at all – speak to us about making representations on your behalf, as putting in the early effort can certainly pay for itself several times over. 

Today we received confirmation that both sequences against our client would be formally withdrawn at Court on the first mention, and that the Police prosecutor would mention our appearance, meaning neither we nor our client ever had to attend Court. 

The first sequence (charge) was pursuant to section 93C of the Crimes Act 1900 (NSW), and carried a potential sentence of imprisonment for 10 years. The second sequence was pursuant to section 4(1) of the Summary Offences Act 1988 (NSW), and carried a potential sentence of imprisonment for 3 months and / or a fine of 6 penalty units. 

The first charge may be successfully prosecuted if a person uses or threatens unlawful violence towards another and their conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. The second charge could be made out if a person conducts themselves in an offensive manner in, near or within view or hearing from, a public place or school.

In our case, it was not disputed that our client was involved in a physical fight (“unlawful violence”), and that a screaming match ensued, during which threats were made, all on a public road in the presence of “reasonably firm” witnesses. However, both sequences were withdrawn before even the Police brief of evidence was served, and neither us nor our client had to go to Court in relation to the matter at all.

So how did we beat it? We’ll tell you part of the story… 

On receiving the Court Attendance Notice (“CAN”) we immediately went about drafting what is known as “representations”. Just as with a commercial or civil case, where privileged offers can be made to negotiate an outcome, representations are essentially the same thing. What most people don’t know is that, in some cases, a defendant in criminal proceedings may also be able to get an order that the Police or prosecution pay their legal costs, again as with commercial or civil cases. If you have a strong case and representations are put to the prosecution early enough, if the prosecution is continued, the costs risk grows. This provides a commercial incentive to withdraw charges and / or to negotiate plea deals for lesser charges and / or lighter sentences, depending on the particular case. Of course, building a strong case is another issue, and often involves a careful and sometimes complex analysis and construction of judicial interpretation of the relevant statutory provision(s) underpinning the CAN, but the upside is that there could be much more required to prove the charge, and therefore your prospects of success in defence could be higher than you might originally think.

It just goes to show that a case is not always as difficult as it might seem when you read a CAN or first speak to Police. Don’t just plead guilty, and don’t assume you need to give statements or say anything at all – speak to us about making representations on your behalf, as putting in the early effort can certainly pay for itself several times over. 

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