Charges of Affray
Affray is an offence under section 93C of the Crimes Act 1900 (NSW). It involves the use or threat of unlawful violence that would cause a person of reasonable firmness present at the scene to fear for their safety. It can be committed in public or private settings. The offence is serious and is punishable by up to 10 years’ imprisonment. If you are facing charges of affray, it’s essential to understand the your rights and obtain expert legal representation to protect your rights and advocate on your behalf.
Elements of Affray Charges
To secure a conviction for affray charges, the prosecution must prove the following elements beyond reasonable doubt:
Use or Threat of Unlawful Violence
The accused must have either used or threatened to use unlawful violence against another person. Importantly, threats made by words alone do not satisfy this requirement.Conduct That Would Cause Fear
The accused’s behaviour must be such that it would cause a person of “reasonable firmness” present at the scene to fear for their personal safety. This is assessed objectively — even if no one else was actually present, the law asks whether a hypothetical bystander would have been afraid.Intent or Awareness
The accused must have intended to use or threaten violence, or have been aware that their conduct might be violent or perceived as threatening.
If more than one person is involved, the court considers the combined conduct of all participants. This often arises in brawls or group fights in public places like streets, pubs, or train stations.
Affray can be committed in both public and private spaces and is treated seriously due to its potential to cause community fear and disorder.
Penalties for Affray in NSW
Affray is a serious criminal offence in New South Wales, carrying a maximum penalty of 10 years’ imprisonment . The penalty will depends on the circumstances of the case and and the subjective circumstances of the offender.
If the Local Court hears the matter, the maximum sentence is capped at 2 years. However, if the case involves aggravating factors—such as weapons, group violence, or public disturbances—it may be referred to the District Court, where the full 10-year maximum sentence applies.
Self Defence to Affray
If you’re charged with affray in NSW, you can raise self-defence if it applies. Self defence to Affray or any other offence is contained in Part 11 of the Crimes Act 1900 (NSW).
A person is not criminally responsible for an offence if they genuinely believed their actions were necessary to defend themselves or another person, and their response was reasonable in the circumstances as they perceived them.
Frequently Asked Questions about Affray Charges
Is affray a criminal offence?
Yes, affray is a serious criminal offence under section 93C of the Crimes Act 1900 (NSW).
Is affray a summary offence?
Affray is classified as an indictable offence in New South Wales. However, it is a Table 1 offence under the Criminal Procedure Act 1986 (NSW), meaning it can be dealt with in the Local Court unless the prosecution or the accused elects for the matter to be heard in the District Court.
This allows less serious affray cases to be resolved more quickly in the Local Court, where the maximum penalty is capped at 2 years’ imprisonment, compared to the 10-year maximum if dealt with on indictment in the District Court.
What is affray charge?
An affray charge is a criminal offence under section 93C of the Crimes Act 1900 (NSW). It applies when a person uses or threatens unlawful violence in a way that would cause a reasonable person at the scene to fear for their safety.
What is the difference between affray and assault?
Affray and assault are both criminal offences involving violence, but they differ in their legal definitions and how they are prosecuted.
Assault refers to the direct application of force or the threat of force to another person without consent. It typically involves personal harm, such as punching or kicking someone.
Affray, on the other hand, occurs when a person uses or threatens unlawful violence in a way that would cause a reasonable person present to fear for their safety. It doesn’t require a specific victim and can occur in public or private. For example, a street fight where bystanders feel threatened could lead to an affray charge.
In short, assault targets an individual, while affray focuses on behaviour that causes fear to the public or those nearby. Both can be charged together depending on the situation.
How long do you get for affray?
The maximum penalty for affray in NSW is 10 years’ imprisonment. However, if the matter is dealt with in the Local Court, the maximum penalty is capped at 2 years. The actual sentence will depend on circumstances of the offence and the subjective features of the offender.
Does affray stay on your record?
Yes, if you are convicted of affray, it will appear on your criminal record. However, if the charge is dismissed, or you receive a non-conviction outcome (such as a section 10(1)(a) dismissal or conditional release order without conviction), it will not be recorded as a criminal conviction.
Need Help with an Affray Charge in NSW?
Being charged with affray is serious. At AMA Legal, our experienced criminal defence lawyers are here to protect your rights, guide you through the legal process, and fight for the best possible outcome.
Call us on (02) 8610 3764 for a free consultation.
RELATED ⇒ Malicious Wounding Charge
If the assault leads to an injury where the skin was broken through both the outer (epidermis) and inner (dermis) layers, a wounding charge may be pursued by the Prosecution. This is a serious offence that carries significant penalties and is typically prosecuted in the District Court.
Learn more about malicious wounding charges in NSW.
RELATED ⇒ Assault Occasioning Actual Bodily Harm
While common assault does not involve actual bodily harm, more serious assaults resulting in bodily injury may be charged as assault occasioning actual bodily harm under section 59 of the Crimes Act 1900 (NSW).
Learn more about assault occasioning bodily harm in NSW.
