Affray & Public Violence in NSW

Affray is charged under Section 93C of the Crimes Act 1900 (NSW), defining the offence 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 collective conduct that must be considered for the purposes of subsection (1).

For the purposes of this section, a threat cannot be made by the use of words alone. No person of reasonable firmness need actually be, or be likely to be, present at the scene.
Affray may be committed in private as well as in public places. Affray is a serious offence, carrying a maximum penalty of 10 years imprisonment. It is treated seriously because it is viewed as being an offence against public order.

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Definition of an Affray in NSW

Under section 93C of the Crimes Act 1900, affray is defined as the unlawful use of violence (or threat of violence) towards another person in circumstances where that conduct would cause a person or reasonable firmness present at the scene to fear for their personal safety. A person of reasonable firmness doesn’t actually need to be present; it will be sufficient if the prosecution can prove that a person of reasonable firmness would have feared for their safety had they been present. A verbal threat alone does not constitute an affray being committed. ​This is a more serious offence than common assault, as it is viewed as an offence against public order.

 

Unlawful Violence

Unlawful violence is defined as any sort of violence that cannot be excused by law. This does not include, for example, lawful violence, such as self-defence or the defence of others. 

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Person of Reasonable Firmness

A person of reasonable firmness refers to an ordinary person/ hypothetical bystander at the scene of an event who, as a result of the event, fears for their personal safety.  While there is no legal definition for a ‘person of reasonable firmness,’ it is largely accepted as being an average citizen.

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

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This could include:

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• Threatening violence against a co-worker

• Fighting in a pub or bar

• Being involved in a violent public demonstration or protest

• Road rage

• Partaking in disorderly public behaviour (eg. brawls or riot) that intimidate others

 

Possible Penalties

As per NSW legislation, the maximum penalty for affray is 10 years' imprisonment. However, the type and severity of the penalty would be determined by factors, including the nature of the unlawful violent behaviour, whether harm was inflicted and whether the conduct was committed in a public place.  The penalty given to someone found guilty of affray is dependent on the individual nature of their case. As such, the court can exercise discretion in the sentencing of an offender, which may result in any of the following penalties: 

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• Imprisonment 

• Section 10- dismissal 

• Fine

• Conditional Release Order 

• Community Correction Order – sometimes with Community Service attached

• Intensive Correction Order (ICO) – sometimes with Community Service and/or Home Detention attached
   

​​Where will my matter be heard?

As a table 1 offence, your case may be heard in the local or district court. If your matter is dealt with in the local court, you will be liable to a maximum sentence of 2 years imprisonment if found guilty. If your case is committed to the district court and you are found guilty, the maximum sentence of 10 years may be applied.

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Defences

If an individual has been charged with affray, but they/ their legal team believes their actions are justifiable, they may be able to raise a legal defence that can result in either an acquittal or diminished sentence. 

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Drinkwater Criminal & Family Lawyers can advise you of any possible defences relevant to your circumstances. With reference to affray charges, these include, but are not limited to: 

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• Self Defence – The accused used unlawful violence to protect themselves, their property or another individual 

• Duress – The accused used unlawful violence at the threat or coercion of another 

• Necessity – The accused used unlawful violence to prevent serious injury or danger 

• Pleading Guilty
   

If you choose to plead guilty to affray charges in NSW, you agree with the charges against you and take responsibility for the offence. In these circumstances, your matter will progress to sentencing, where the judge or magistrate will assess the case’s individual circumstances to determine an appropriate punishment. If your matter is heard in the local court you are liable to a maximum penalty of 2 years imprisonment and are liable to a maximum penalty of 10 years imprisonment if your case is heard in the district court.

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If you choose to enter a guilty plea, doing this at the earliest possible opportunity will usually provide the best possible outcome in sentencing. This will mean your case progresses straight to sentencing, with a maximum 25% sentencing discount for an early plea. 

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Pleading Not Guilty

If you disagree with the charges made against you, you can enter a plea of not guilty, and your case will progress to a Hearing or Trial. Your case will either be heard before a local court magistrate or a judge and jury (usually) in the district court. In these circumstances, the prosecution and defence can present their case. Due to the burden of proof in the NSW legal system, if you plead not guilty, you will not be found guilty unless the prosecution can prove beyond a reasonable doubt that you have committed all the elements of the offence.

 

Burden of Proof

As a criminal offence, the burden of proof for a charge of affray lies with the prosecution. In order for an individual to be found guilty of affray, the prosecution must prove beyond a reasonable doubt: 

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• That the individual used or threatened unlawful violence towards another person or property

• There must be evidence of a physical act of this, as words alone are not enough to constitute an affray charge 

• That the conduct would have caused a person of ‘reasonable firmness’ to fear for their safety 
   

This does not require another person to be present; the prosecution must simply prove that if an ordinary person were present, the conduct would cause them to fear for their safety. 

If the prosecution cannot prove these elements beyond a reasonable doubt, the accused will be found not guilty of affray and no criminal conviction will result.