The Offence of Affray
8 December 2021 in Criminal Law | 2 min read | skip to FAQsThe offence of affray is a public order offence which involves either the use or threat of violence by a person or group of people against another person. The offence is capable of being committed in both public and private places.
To be Guilty of an Affray, a Person must have:
- Used or threatened unlawful violence towards another person; and,
- The violence or threat of violence would have caused a person of reasonable firmness who was at the scene to fear for their own personal safety. The phrase reasonable firmness is colloquially an average person or someone who doesn’t have a fragile constitution.
Threatened unlawful violence for the purposes of affray cannot be established by the use of words alone. In addition, the offence does not require a person of reasonable firmness to be actually present or likely to be present at the scene.
It is important to note that if an affray is committed in the company of other people, then the court will consider the conduct of the group collectively. This means that the offence of an affray may still apply to a member of a group who committed an affray even where their involvement was less serious than other members.
Penalties
If you are found guilty of an affray, you will be liable for up to 10 years imprisonment as determined by Section 93C of the Crimes Act 1900 (NSW).
Defences
The two main defences which may be available are self-defence and duress.
- The defence of self-defence may be relied on where a person carries out conduct constituting an offence, such as affray, in self-defence. Self-defence can only be relied on as a defence if an offender genuinely believes that the conduct carried out in self-defence was necessary.
- The defence of duress may be employed when a person acts in a manner which may be considered to be affray, because they were subject to threats of death or serious injury.
How can BSM Sydney Lawyers assist you?
Being charged with an affray offence is a very serious matter and being found guilty of this offence can have a significant impact on your future. It is important that you seek expert criminal legal advice. The criminal lawyers at Brander Smith McKnight Lawyer Sydney have extensive experience in this area. We have experience in the Local, District and Supreme Courts and pride ourselves on our success rate. We will protect your rights. The senior criminal lawyers at BSM Sydney Lawyers offer a free 20-minute consultation.
FAQs
When is a person likely to be charged with the offence of affray?
The police may consider a charge of affray if a person is suspected or known to have been involved in incidents of public fighting.
What is the difference between an affray and an assault?
Assault and affray offences share some similarity but are different in several ways. An affray is a public order offence and assault comes within the definition of “offences against the person”. There is no aggravated forms of affray, but there are aggravated forms of assault. An affray is considered by the courts to be a more serious offence than common assault.
Does an affray need to be committed in public?
No, although it is considered a public order offence, it still applies to conduct carried out in private places.
Can I still be found guilty of committing an affray if I did not harm anyone?
Yes, this is because the offence extends to situations where unlawful violence is threatened but not carried out. As such, it is only relevant to consider whether your conduct would have caused a person of reasonable firmness present at the scene of your actions to fear for their personal safety.
In addition, if you commit an affray in a group of people, even if you do not harm anyone, the court will consider the harmful actions of other members of the group, when determining whether you are guilty of an affray. The criminal lawyers at BSM Sydney lawyers have experience in defending clients charged with the offence of affray. We can help you by negotiating with the police prosecutors and advocating for you in court.
What does the term reasonable firmness mean?
The legal definition of this term is an average person or someone who doesn’t have a fragile constitution. It is used in relation to the definition of affray. That is, a person of reasonable firmness fears for their own safety.
BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Parramatta, Sutherland, Shellharbour and Wollongong.
About the Author
Lachlan TaxBachelor of Laws I Bachelor of Commerce with a major in Economics I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileLachlan Tax is a senior lawyer at Brander Smith McKnight. He is a highly accomplished criminal defence lawyer, holding a Bachelor of Laws, a Bachelor of Commerce from the University of Wollongong and a Graduate Diploma in Legal Practice. Lachlan has significant experience in criminal law, having achieved outstanding results for his clients across a wide range of criminal matters from traffic offences to serious indictable matters such as assault. Lachlan is an expert court advocate and a senior member of the criminal defence team at BSM Sydney Criminal Lawyers. Lachlan has recemt;u acted for a client facing a charge of affray. Following Lachlan's cross examination, examination in chief and oral submissions, the client was found not guilty of the offence.
