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Affray

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What is affray?

Affray is an offence relating to public order and it is found in section 93C of the Crimes Act (NSW) 1900. Prior to 1988 affray in New South Wales was a common law offence. Historically the charge of ‘riot’ was used to address pubic order offences. However this presented a difficulty because 12 or more people had to be involved before a charge of riot could be successful. Following the ‘Milperra Massacre‘ and riots at Mount Panorama, Bathurst parliament introduced the offence of affray. A person commits the offence of affray if they:

  • Use or threaten the use of violence towards another person and,
  • The violence or threat of violence would cause another person of reasonable firmness who was at the scene to fear for their personal safety.

Put more simply, if a person physically assaults another person or threatens to physically assault another person, and the violence is so serious that it would cause a bystander (whether they are there or not) to fear for their personal safety, then a person has committed the offence of affray. Affray is a charge often laid by police when a person is suspected of being involved in fighting in public. It can also be used even if the offence is alleged to have occurred on private property. An offence of affray is considered by the courts as much more serious than other similar offences involving violence, such as common assault. Unfortunately, police often charge people with the offence of affray in circumstances where there has been a fight and no one is willing to provide a statement.

What are the penalties for affray?

The offence of affray is serious, and if the police charge you with affray, you could be facing imprisonment of up to 10 years. It is also important to remember that if there are other people (co-accused) who have been charged with affray arising from the same incident, then the court is entitled to take into account the actions of all of the people involved in the affray. In other words, even if a person’s involvement is less serious than their co-accused, the court will deal with them in relation to the conduct of all the people involved in the affray. This can have a serious impact on how a person is sentenced for an affray offence. The penalty for affray was increased from 5 years to 10 years in 2005 at the time of the ‘Cronulla Riots’.

What are the defences to affray?

There are a number of defences available to an affray charge the most common being self-defence. If it can be established that your actions were carried out in self defence then the violence would no longer be considered to be unlawful and the charge would be dismissed.

What should I do if i’m charged with affray?

If a person is charged with affray, it can have serious consequences especially on their employment prospects and their ability to travel. That is why it is important to speak to an experienced criminal lawyer before you make the decision to plead guilty or not guilty to an affray charge.

Affray Case Studies

  • No conviction for Affray and Assault charges

    Our client is a 22-year-old professional rugby player. He was in the Sydney CBD with 3 friends.

    While walking out of ‘The Star’ he was attempting to hail a taxi. The driver refused to allow our client into the taxi and began verbally abusing our client.

    Our client and a friend approached the driver side window.

    A physical altercation ensured with bystanders having to step between the parties. The taxi driver sustained cuts to his face and significant bleeding.

    As a result, our client was charged with Affray and Assault occasioning actual bodily harm. The Police facts sheet alleged that our client had punched the driver numerous times and attempted to choke him.

    He was also issued with a banning notice from the Star.

    Our client’s instructions were that he had only slapped the driver.

    He had spoken to other lawyers who advised him that he would have to accept the Facts Sheet and charges and that he could not avoid a conviction.

    We took a different view.

    We immediately began writing ‘representations’ to have both charges withdrawn in lieu of our client pleading guilty to a charge of Common assault.

    We also began negotiating for the Facts Sheet to be heavily amended to delete any references to our client punching the driver and the driver being injured.

    We also were able to have the banning order revoked.

    Ultimately our amendments to the Facts were agreed.

    We provided our client with our specialised character reference and apology letter guides. We obtained references confirming that he was heavily involved in charity work and that a criminal conviction would affect his ability to travel and it could lead to fines and suspensions from the NRL.

    We made lengthy oral submissions in Court, stressing the low objective seriousness of the offending as well as our client’s need to be conviction free.

    The magistrate accepted our submissions and exercised her discretion not to impose a criminal conviction.

     

    We were also able to use our public relations specialists to ensure that the case did not garner any media attention.