What is the offence of affray?

The offence of Affray is found at section 93C of the Crimes Act 1900.

When people think of Affray they typically think of riots and public disorder; however neither are necessary elements of an Affray. An Affray can in fact be committed by one person in a private location. If two or more persons use or threaten unlawful violence, the conduct of those persons may be taken together and considered for the purposes of determining whether an offence of affray has been committed. The effect of this is that Affray is a charge commonly laid by police in conjunction with an assault charge as there is considerable overlap of what the police will need to prove.

When a person is charged with Affray, our solicitors are often able to beat the charge by raising issues such as identification (were you the person who actually committed the offence?) and self-defence (were you threatened and was your response reasonable?). On other occasions, we can negotiate with the police to lay a lesser charge or change the facts to ensure a more lenient penalty is received.

If you are charged with the offence of Affray, your options will normally be to plead guilty or not guilty.

Pleading not guilty

You will be found not guilty of the offence of Affray if the police cannot prove beyond reasonable doubt:

  1. You (in Affray cases identification is often a live issue) or you and another person;
  2. Used or threatened unlawful violence towards another;
  3. Your conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety (however, the police are not required to prove a person of reasonable firmness is, or was likely to be, present at the scene);
  4. You intended to use or threaten violence or you were aware that your conduct may be violent or threaten violence.

For the purpose of Affray, a threat cannot be made by the use of words alone.

If the police are able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established:

Contact our offices in Sydney, Parramatta, Blacktown or Redfern to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of Affray.

Pleading guilty

If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.

The NSW Court of Criminal Appeal has held in determining an appropriate sentence for an offence of affray, relevant factors include an offender’s conduct in the context of the conduct of a co-offender; the level of violence used and the scale of the affray.

Affray carries a maximum penalty of 10 years imprisonment in the District Court or 2 years imprisonment if the offence is it is dealt with in the Local Court. However, these penalties are typically reserved for the worst offenders. Our solicitors have a proven track record of not only keeping our clients out of gaol but also, depending on the seriousness of the allegation, having the offence dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about a section 10, click here.

Penalties that a court can impose in NSW are:

Case Study

AC Law Group represented a group of people charged with affray following a brawl involving security guards in the city. Our solicitor forensically examined all the CCTV available and compared it to the versions of events given by the security guards. In doing so, he was able to cross examine the witnesses on a large number of inconsistencies between the documentary, indisputable CCTV and what they said happened.  The Magistrate found the security guards were untruthful witnesses and found our clients not guilty.

Case Study

Our solicitor represented a Defendant charged with Riot following a brawl that involved 30 people and the production of weapons. CCTV showed the Defendant stabbing another person in the back and the Defendant admitted to police that he was the person in the video footage. We negotiated for the Defendant to plead guilty to the lesser charge of Affray on the basis that he had thrown a punch at the early stages of the brawl but when weapons were produced he had retreated and everything that happened thereafter was in self-defence including his own use of a weapon. Despite the Defendant having a record of violence, the Magistrate found his involvement was at the lowest end and he received a good behaviour bond.

Case Study

AC Law Group represented a Defendant charged with Affray following a brawl at a gymnasium. The brawl was between members of two bikie gangs. Our solicitor negotiated the facts to reflect that not only was our client not the instigator but that his involvement was incidental to a friendship he had formed at the gymnasium and that he was a person of good character who was unlikely to reoffend. The Magistrate agreed and did not record a criminal conviction.

Case study

Mr Adut represented a co-Accused client at Mount Druitt Local Court. The co-Accused and his friends were charged for an Affray but so were the other group in the fight. CCTV only captured the later part of the brawl but did not show what instigated it. Mr Adut raised self-defence and the prosecution, in the absence of a victim who was not being accused of being criminally, were not able to prove the co-Accused’s conduct was for anything other than his own protection. He was found not guilty.

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