Affray NSW

Since around December 2005, Police appear to have been preferring the charge of “affray” against people involved in some form of public disorder. As a result of the infamous “Cronulla Riots” in 2005 (see: “Mob Violence Envelops Cronulla”, Sydney Morning Herald), State parliament quickly passed a law to double the maximum penalty for anyone found guilty of a charge of affray (NSW).

The Law

Pursuant to section 93C of the Crimes Act 1900, if:  

a) a person uses or threatens unlawful violence, whether to persons or property, (including any violent conduct such as throwing missiles that fall short) not including a threat by words alone

b) and the conduct is such that it would cause a person of reasonable firmness to fear for his personal safety

then they are guilty of the charge of affray.

Penalties

The maximum penalty for affray is 10 years’ imprisonment. If the matter is finalised in the Local Court, then the maximum penalty that can be imposed is 2 years’ imprisonment.

Commentary

One would think that the purpose of the legislation is quite clear – that is, to prevent members of the public from being placed in fear due to the violence or threats of violence from another. However, the plain language of the legislation allows for police to charge people with affray in private environments as well as public. As long as someone uses or threatens the use of violence (beyond mere words), whether towards one person, a group of people, as part of a group of people or acting alone, then they can be charged with affray.

The assessment of whether the conduct would cause fear in someone is then a matter of objective analysis of the circumstances. Further, as the consideration is whether the conduct “would” cause fear, rather than actually causing fear, the law states that it is not a necessary requirement that a person (of reasonable firmness) actually be present at the scene.

For the above reasons, affray charges are seen to be laid in varying circumstances, including a “pub brawl” (which one might consider an obvious form of the offence) to a one-on-one fight in someone’s front yard.

Due to the language of the legislation leaving it open to police to charge people in many different circumstances, it is important to analyse the conduct being relied on and the context and environment in which the alleged conduct occurs. This often means that experienced criminal lawyers are able to successfully defend charges of affray, despite the alleged violent conduct being proved.

If you have been charged with an affray offence, our experts at Prime Lawyers – Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.