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In New South Wales, the offence of affray is contained in s 93C of the Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment A person can be charged with affray if they use or threaten to use unlawful violence towards another person. These acts of violence or threats of violence must be serious enough to cause a person of reasonable firmness to fear for their personal safety. In other words, the acts or threats must be serious enough to make an ordinary bystander scared of being injured or harmed by the person charged. This is a question of degree – the more aggressive the threats or the more serious the violence the more likely it is that a person of reasonable firmness would be concerned for their safety.

What Actions Might Constitute Affray?

Common examples of the offence of affray include:

  • Getting into a fight in front of one or more people;
  • Yelling and threatening to punch someone;
  • Road rage; or
  • Participating in a riot.

What the Police Must Prove?

To convict a person of affray, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • They used, or threatened to use violence towards another person;
  • They intended to use or threaten to use violence;
  • Their actions would cause a reasonable person to fear for their personal safety; and
  • They did so without lawful excuse.

Possible Defences for Affray

A person charged with affray may validly argue in their defence that:

  • They did not use or threaten to use violence;
  • That a person of reasonable firmness would not have feared for their personal safety because of the conduct; or
  • That they were acting in self-defence.

Which Court Will Hear Your Matter?

This charge is a “Table 1” offence which means that either the person charged or the prosecution can elect to have the matter dealt with in the District Court. If neither party makes this election the matter will be finalised in the Local Court.

What Will Happen if I Plead Guilty to Affray?

If a person has been charged with affray and wants to plead guilty, they can inform the court of this at the first mention. The court may finalise the matter on the day or adjourn until another date to finalise the matter if there are other steps that need to be taken prior to sentencing. This may include gathering supporting documentation such as character references are applying to take part in a rehabilitation program (where alcohol or drugs are a factor in the offending).

The court then conducts a sentencing hearing and hears submissions from the defence about the circumstances of the offence, the accused’s personal circumstances, any other legal principles that are relevant and what the appropriate penalty might be. It then makes the appropriate sentencing orders.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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