What is Affray in NSW Law?

Affray in NSW law is classified as a ‘public disorder’ offence, and comes with penalties ranging from fines, to ten years imprisonment.

Although originally created to deal with widespread unrest and disturbances that endangered public safety, affray charges are now becoming more common in private situations.

What is affray?

Affray is legally defined as “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 safety…” .

Under Section 93C of the Crimes Act 1900 (NSW), the prosecution must establish the charge of affray by proving the following elements beyond a reasonable doubt:

1. That you threatened unlawful violence towards another person, and
2. That your conduct would cause a person of reasonable firmness present at the scene to fear for their safety.

You must be found not guilty if the prosecution cannot establish both of those ‘elements’.

It is important to note that there is no legislative definition of a ‘person of reasonable firmness’. However, it is widely accepted that this person is a hypothetical ordinary individual, used as a standard when deciding whether a person would have been in fear for their safety.

The prosecution does not need to establish that another person was actually present at the scene of the conduct.

The offence can relate to both public and private places.

What is the difference between affray and assault?

There is often confusion as to the differences between affray and assault.

Although both charges usually involve some form of physical violence, affray is used when there is a third party involved who is affected by the incident, or it is of such a nature that if a third person had been present they would have had reasonable grounds to be afraid.

Verbal threats alone are not enough to qualify as affray, there needs to be some form of physical violence or threat of violence that is serious enough to make another person fear for their safety.

The main difference between assault and affray is when other people fear for their safety. Examples of affray can include:

• Road rage
• Fighting in a nightclub or at a bar
• Being involved in a violent protest

Often affray is treated more seriously than assault as it is considered an offence against the public order rather than an individual.

What are some other public disorder offences?

There are some other public disorder offences that are similar to affray, including violent disorder and riot.

• Although violent disorder and affray have a number of similar elements, there are major differences. The offence of violent disorder is contained in section 11A(1) of the Summary Offences Act 1988. This offences involves three or more people, and the violent behaviour does not have to be directed towards another person or people, it can be aimed at property instead. This offence carries a maximum penalty of 6 months in prison.
• The offence of Riot is contained in section 93B of the Crimes Act 1900. This involves a situation where a group of twelve or more people with a common purpose, whose conduct together would be sufficient to cause a person of reasonable firmness to fear for their safety. Riot is a serious offence, and carries a maximum of 15 years imprisonment.

How can I defend myself against an affray charge?

If you are facing a charge of affray, it is advisable to seek legal help.

Affray can be dealt with in either the local or district court, and the penalties vary depending on where the hearing takes place.

Some potential defences for an affray charge include self-defence, duress and necessity.

As affray in NSW law can come with a hefty prison sentence of up to 10 years, it is important to take any charges of affray seriously and present the strongest possible case.

In many cases, with the right criminal defence lawyer, you may be able to have the charges withdrawn at an early stage and avoid the need to go to court.

If the matter does proceed to court, some things that might help you defend yourself include obtaining character references, participating in counselling or drug and alcohol rehabilitation programs where appropriate, and making the court aware of any mitigating circumstances that may have contributed to the alleged offence.

If you require the services of a criminal defence team that specialises in representing clients for cases under the Crimes Act, call Sydney Criminal Lawyers today on (02) 9261 8881 to arrange a consultation.

Our team is vastly experienced in advising and representing clients in criminal law cases, and will fight to ensure you achieve the optimal result in the circumstances.