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The Offence of Affray

The 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).

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Defences

The two 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.

Why BSM Lawyers?

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 legal advice.  Brander Smith McKnight’s criminal defence lawyers 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.

FAQs

chevronWhen 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.

chevronWhat 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.

chevronDoes 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.

chevronCan 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.

Brander Smith McKnight is conveniently located in Sutherland, Parramatta, Sydney CBD and Wollongong.

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