What is Affray?
Affray is a violent offence very similar to assault. The courts consider affray to be a more serious offence though. Where assault may be committed towards an individual, affray involves other people fearing for their safety as a result of the act of violence. To be charged with the offence of affray, the accused would have to use or threaten violence towards a person or people in such a way that another person or people who were present and/or witness to the violence feared for their personal safety as a result.
When clients ask our criminal lawyers about Affray, they generally have riots and/or public disorder in mind. While the very definition of affray means that the most common charges do involve incidents involving things like brawls and assaults in public spaces, Affray will not always involve large groups of people brawling in the street. Affrays can be committed by one person using unlawful violence towards another and can also include acts committed in the privacy of their own home.
Affray is a serious offence considered to be an offence against the public order to protect the peace. The charge carries a maximum prison term of 10 years.
If you intend to plead guilty our criminal lawyers have a proven track record of keeping our clients out of gaol as well as having no conviction recorded for Affray
An affray is an offence involving the use or threat of unlawful violence towards another person in circumstances where, if there was someone else present at the scene, that person would feel fear for their personal safety. Affrays can occur in both private and public places.
A verbal threat cannot be words alone for an affray to be committed. The words must be accompanied by an action that, combined with a verbal threat, could cause a witness to be fearful of their safety. The threat or act of violence must be serious enough for a person of “reasonable firmness” that is a witness to the conduct to become fearful. However, a person of “reasonable firmness” doesn’t actually need to be present. The test is only whether if a person was present, would they feel fear.
Affray Legal Definition as per NSW Legislation
The legal definition of affray is included in New South Wales legislation in Section 93C of the Crimes Act 1900. The crimes act defines affray 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 personal safety is guilty of affray and liable to imprisonment for 10 years.
- If 2 or more persons use or threaten unlawful violence, it is their conduct of them taken together that must be considered for the purposes of subsection (1)
- For the purposes of this section, a threat cannot be made using words alone
- No person of reasonable firmness needs actually be, or be likely to be, present at the scene.
Affray may be committed in private as well as in public places.
Charged with Affray? How to beat a charge of Affray
You’ll be found not guilty of Affray if the police are unable to prove beyond reasonable doubt that you:
- Used or threatened unlawful violence towards another.
- Your conduct was such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
- You intended to use or threaten violence, or you were aware that your conduct may be violent or threaten violence.
Getting charges of affray downgraded
Often charges of affray and riot are laid where a less serious charge of common assault, actual bodily harm, violent disorder, or intimidation should be charged instead. A common example is where two people fighting in the street might be charged with affray. However, no violence was directed or threatened towards the public, the conduct does not amount to such that a person of reasonable firmness at the scene would be fearful.
Not all acts of violence can be affray.
In determining whether an act of affray has taken place, each of the following conditions should be considered:
The use of or threat to use unlawful violence
“Unlawful violence” simply means violence that is not excusable by law. An example of lawful violence might be an act of self-defence.
Whether a person of “reasonable firmness” would fear for their safety
This refers to whether a person with normal or average courage would likely fear for their safety because of the act or threat of violence.
There is no legal definition for the term “A person of reasonable firmness” in the legislation. However, it is generally agreed that this refers to a hypothetical average or ordinary person. This would be a person who is neither particularly tough nor fearless nor someone who is particularly timid or easily scared.
The degree of violence is an important element in the offence of affray. The more aggressive the threats or severity of violence, the more likely an innocent bystander would become fearful for their own safety.
If the threat was not accompanied by an action
Threats cannot be made with words alone for an act of affray to have taken place.
While affray can include threats of violence, action must be taken that, together with these verbal threats, causes fear. Threats using words alone would normally fall under another, less severe offence.
If there was more than one person involved, the behaviour of all of them taken together
Whilst there does not need to be more than one person engaging in unlawful violence for an affray to be committed, police commonly make mistakes as to a person’s level of involvement. A person’s presence when unlawful violence is taking place, where they are not engaging in unlawful violence themselves, is not an affray and the role of each person present needs to be considered. An example of where this is relevant would be a brawl in a public place involving multiple people where an accused person makes be an onlooker rather than a participant.
Where these conditions cannot be proved beyond a reasonable doubt, you cannot be found guilty of the offence of affray and it might be possible to have charges reduced to a less serious offence or even dropped altogether.
The difference between Affray and Riot
The offence of riot, contained in s 93B of the Crimes Act 1900 and is identified in the following terms:
(1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.
(2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.
(3) The common purpose may be inferred from conduct.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Riot may be committed in private as well as in public places.The offence of affray is identified in s 93C in the following terms:
(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.
There are two further provisions which bear upon the meaning and practical effect of these offences. First, s 93A provides a definition of “violence” in the following terms:
In this Division:
violence means any violent conduct, so that:
(a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and
(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).
The mental element is identified in the following terms:
93D Mental element under sections 93B and 93C
(1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.
(2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
(3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.
There are four elements of the offence of riot which differ from that of affray. First, a person can be guilty of affray when acting alone: there is no requirement for 12 or more persons to act together for a common purpose. Secondly, while both offences require that the conduct of the person charged must cause a person of reasonable firmness to fear for his or her personal safety, for affray that must be achieved by the conduct of the accused alone, whereas riot requires the composite effect of the conduct of 12 or more persons. Thirdly, for an affray, the unlawful violence must be directed towards another person; with respect to riot, violence includes violent conduct towards property as well as towards persons: s 93A(a). Fourthly, riot requires that the accused use unlawful violence; for affray, a threat of violence is sufficient.
Common defences for Affray and Riot
Ways that our criminal lawyers beat charges of Affray for our clients include the following defences.
- Raising self-defence when violence was used to protect yourself, your property, or another person
- Identification where the person who committed the offence was someone, but not you
- That you didn’t use or threaten to use violence
- That someone of reasonable firmness would not have feared for their personal safety because of your conduct
Pleading guilty to affray and Riot
You might choose to plead guilty if you committed the offence and the police can prove so. This can result in a more lenient sentence as it shows remorse. However, you will need good legal representation.
We fight to get the best results for guilty pleas. We will often negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge, so you get a lighter sentence. This includes no convictions or orders to avoid a criminal record.
If you intend to plead guilty our criminal lawyers have a proven track record of keeping our clients out of gaol and getting them the best results every time.
Do I need references to plead guilty to affray?
We believe references are an extremely important part of a plea of guilty in court. Find out more about how to write good references and court processes.
Affray Sentences and maximum penalties
The maximum penalty for affray is two years imprisonment if heard in the Local Court.
The prosecution may elect to have the matter heard in the district court, however. The district court will also hear cases involving other, more serious charges. The maximum penalty for Affray, when heard in the district court, is 10 years imprisonment. Although, it is typically only the worst offenders that receive these penalties.
Alternate penalties for Affray
There are several alternate penalties available to the court for the offence of affray that is more favourable than imprisonment. These are as follows.
- Conditional Release Order
- Community Corrections Order
- Intensive Corrections Orders
- Section 10: No convictions
Australian Criminal Law Group is experts at getting the best results for charges of affray including getting lenient sentences or having charges downgraded from affray to a less serious offence. If you have been charged with this offence, give us a call to book an appointment so one of our experienced defence lawyers can assess your case.
Why choose the Australian Criminal Law Group
With such harsh maximum penalties, being charged with affray should not be taken lightly. We recommend you engage the services of a qualified and experienced lawyer if you have been charged. Having the right criminal lawyer on your case could be the difference between avoiding jail and maintaining a clean criminal record or time spent in prison.
Australian Criminal Law group can help you beat a charge of affray. We will fight to have charges dropped or reduced to a less serious charge or, if you decide to plead guilty, we will fight for the best possible outcomes in court.
You can also email us at firstname.lastname@example.org
Australian Criminal Law Group represented people charged with Affray following a brawl involving security guards in the city. Our Sydney criminal lawyer examined the CCTV available and compared it to the versions of events given by the security guards. He was then able to cross-examine the witnesses on inconsistencies between CCTV and what they said happened. The Magistrate found the security guards were untruthful witnesses and found our clients not guilty.
Australian Criminal law Group represented a client charged with affray. Our Parramatta Criminal Lawyer argued the client was not involved in the affray and had been incorrectly identified as a participant. The court accepted the person in CCTV was not our client and found him not guilty. The police were ordered to pay our client’s legal costs.
Australian Criminal Law Group represented two clients charged with affray in an apartment block. Our Sydney Criminal Lawyer successfully argued self-defence and that the other people involved had commenced the fight outside our clients unit. Our lawyer spent 4 days cross examining witnesses to show inconsistencies and lies. Both our clients were found not guilty
Australian Criminal Law Group represented a 21-year-old man caught up in a wild brawl that involved 16 people. Our Sydney criminal lawyer negotiated the facts so that his role in the affray was minor. Based on our lawyer’s submissions the magistrate saw fit to deal with the matter by way of section 10 with no conviction.
Australian Criminal Law Group represented a Defendant charged with Riot following a brawl that involved 30 people and weapons. CCTV showed our client stabbing someone in the back. Our Parramatta criminal lawyer negotiated for the defendant to plead guilty to the lesser charge of Affray. This was on the basis that he threw a punch at the early stage of the brawl but used the weapon later in self-defence. The Magistrate found his involvement was minor and he received a good behaviour bond.
Australian Criminal Law Group represented a Defendant charged with Affray. The brawl was between members of two bikie gangs. Our Parramatta criminal lawyer negotiated the facts to reflect that our client was not the instigator. He also showed that his involvement was incidental to a friendship and that he was not a bikie. The Magistrate found him to be of good character and unlikely to re-offend and did not record a criminal conviction.
Australian Criminal Law Group represented a client charged with affray following a fight at the races. Our Blacktown criminal lawyer argued the first portion of the right was in self defence and it was only a later punch that comprised an assault. The affray, an offence carrying a maximum penalty of 10 years imprisonment, was withdrawn, and the client pleaded guilty to common assault, with a maximum penalty of 2 years imprisonment. The Magistrate accepted our criminal lawyers submissions and our client a section 10 without conviction.
Crimes Act 1900 No 40, Current version for 1 January 2022 to date (accessed 7 March 2022 at 21:52) https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040
This information is intended as a general guide to law only. It should not be relied on as legal advice, and it is recommended that you speak with a qualified lawyer about your situation.
Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, the Australian Criminal Law Group makes no warranties or representations as to its accuracy.