Affray NSW

Since late 2005, police in New South Wales have increasingly preferred to lay affray charges against individuals involved in public disorder. Following the 2005 Cronulla riots (see: “Mob Violence Envelops Cronulla,” Sydney Morning Herald), the NSW Parliament swiftly amended the law to double the maximum penalty for affray.

The Law

Under section 93C of the Crimes Act 1900 (NSW), a person is guilty of affray if:

1. They use or threaten unlawful violence toward another person or property. This includes violent actions such as throwing objects, even if they do not make contact. However, threats made by words alone are not sufficient.
2. The conduct is such that it would cause a person of reasonable firmness to fear for their personal safety.

Affray is assessed based on what would cause fear in a person of reasonable firmness, rather than whether someone was actually present or did experience fear. This makes it an objective legal test, not one based solely on actual outcomes.

Penalties

The maximum penalty for affray is 10 years’ imprisonment. However, if the matter is dealt with in the Local Court, the maximum sentence is limited to 2 years’ imprisonment.

Commentary

The intent behind affray laws appears to be the protection of public safety by discouraging violent or threatening behaviour. However, the broad wording of the legislation means that charges can apply not only in public places but also in private settings. So long as the use or threat of unlawful violence occurs (excluding threats made with words alone), a person can be charged — whether acting alone or as part of a group.

Because the test focuses on whether the conduct would cause fear, not whether it did, there does not need to be any actual witness or complainant present at the time of the incident. This has led to charges being laid in a wide variety of situations, from pub brawls to private altercations in someone’s front yard.

The wide scope of the law means each case must be carefully assessed. The context and environment in which the alleged conduct took place are critical. An experienced criminal lawyer can often challenge the basis for the charge, even when the alleged conduct appears violent.

Need Assistance?

If you have been charged with affray, Prime Lawyers can help. Our criminal law experts will assess your situation, explain your options, and defend your rights. Contact us today to book a consultation with a criminal lawyer at one of our offices in Sydney, Parramatta, Chatswood, Sutherland or Wollongong.