AFFRAY

The offence of affray is governed by section 93C of the Crimes Act 1900 (NSW), which states that:

• 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 the unlawful violence, it is the 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 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 criminal offence that involves the use or threat of unlawful violence towards another person, in circumstances where such conduct would cause a person of reasonable firmness present at the scene to fear for their personal safety. It encompasses violent or threatening behaviour that disturbs the peace and instills fear, and may occur in either public or private settings. Affray is regarded as a serious offence, with penalties that can include imprisonment and/or fines, depending on the jurisdiction.

Elements of the Offence

• Unlawful violence or threats: The offence centres on the use of force or the threat of force against another.
• Conduct inducing fear: The behaviour must be of a kind that would cause a person of reasonable firmness to fear for their safety.
• Location of the offence: Although often associated with public spaces such as streets or licensed venues, affray can also occur in private environments.
• Disturbance of public peace: Affray is characterised by conduct that disrupts public order and provokes a sense of unease or fear.

Examples of Affray

• Engaging in a physical altercation in a bar or on the street
• Acts of road rage involving threats or violence
• Participation in a violent protest or riot
• Threatening another person with physical harm in a confrontational manner

Penalties

The maximum penalty for affray under the Crimes Act 1900 (NSW) is 10 years’ imprisonment when prosecuted in the District Court.

• If the matter is dealt with summarily in the Local Court, the maximum penalty is 2 years’ imprisonment and/or a fine.

Courts may impose a range of penalties, including:

• Imprisonment
• Fines
• Conditional Release Orders (CROs)
• Community Correction Orders (CCOs)
• Intensive Correction Orders (ICOs)

Defences to Affray

• Self-defence: The accused acted to protect themselves or another from harm.
• Lack of intent: There was no intention to cause fear or engage in unlawful violence.
• Duress: The accused was compelled to participate in the conduct due to threats or coercion.

About Post Author

Mark Racca

Principal Solicitor & Director
LLB, GradDipLegPrac, MPA

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