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Affray – What Is It?


Drunken brawls erupting after those involved have had a few too many schooners, boys jumping into fights to ensure they’ve got their mates back and two people fighting on the street. We’ve all witnessed these things happening and hear about them in the news on a regular basis.

What few of us know is that this conduct is not only illegal because it involves violence and assault. It is also illegal because it amounts to Affray. The participants of such fights and brawls, even those who just offer encouragement, could easily be convicted of the offence which carries up to 10 years in prison.

Notwithstanding the significant maximum penalty of 10 years in prison, the offence is broad making it fairly easy for the police to prove. This is because the legislation states that if two or more people act together or with a common purpose, then it is their joint conduct that matters.

The legislation reads as follows:

  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).

Even those of us with law degrees have some difficulty in completely understanding this.

To break it down, the police must satisfy a court, beyond reasonable doubt, that:

  • A person or group of people acting together;
  • Used or threatened violence towards someone else; and
  • What they did would cause someone nearby to fear for their safety.

The offence does not require someone to actually be scared, nor does it require anyone to actually be nearby. Technically, two mates exchanging blows in the privacy of their own home could be guilty of the offence.

Furthermore, the offence does not require a person who is charged to have actually been violent. Even if they haven’t so much as thrown a punch, they may be guilty if they police can prove they’re acting together or with the same purpose as their mates who are. People have been convicted of the offence for encouraging their mates in a fight, egging people on or being present in the midst of an organised fight or riot.

To complicate matters more, people who are involved in such altercations are often charged with multiple offences. It’s not uncommon for people to be charged with multiple assault offences, public disorder an affray.

This may sound unfair to the defendant. There however are important legal principles which have derived from decisions of the High Court and New South Wales Court of Criminal Appeal which ensure that a person’s actual role in the affray is taken into account on sentence and that they are not doubly punished for any conduct which may constitute one or more of the offences for which they are charged. There are also ways to defend the charge if you can demonstrate you were acting in self defence or that you weren’t acting jointly with the other participants at all.

The legislation, case law, police and court procedure surrounding affray charges is complicated. A person who is or who might be charged with such an offence should always seek legal help at an early opportunity. It’s not uncommon for a person to give an interview to police thinking they were simply a by stander to a pub brawl only to be charged with an offence.

Such advice is something that Armstrong Legal specialised in. We can be contacted on 1300 168 676 during business hours or, in the case of an afterhours emergency on 0404 55 88 33.

There is a guaranteed way to aviod a charge altogether – think about what it is you might be getting yourself involved and just walk away.

Image Credit – Englishinbsas © 123RF.com

Written by Trudie Cameron on June 12, 2017

Trudie combines her impressive skills in advocacy and legal analysis with a focus on her client's interests and wellbeing. Her experience working for senior barristers prior to starting at Armstrong Legal gives her a unique insight into criminal advocacy and practice. View Trudie's profile


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