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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.
You can view our recent results for affray and assault charges at the bottom of the page.
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:
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.
Common examples of affray include:
Affray and common assault are similar offences, but affray is more serious as it is an offence against the public order as opposed to an individual.
The penalty for affray is 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’.
However, it is important to note that there is no minimum sentence for affray. It is possible to receive no criminal conviction if you receive a section 10 for affray. The bottom of this page has some examples of these cases.
There are a number of defences to an affray charge which include:
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.
You can get off an affray charge if:
If a person is charged with affray, it can have serious consequences 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.
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.
Our client is a 19-year-old man who had attended licensed premises with 2 friends.
He had consumed a number of alcoholic beverages throughout the night.
In the early hours of the morning a group of males began a verbal argument with our client and his friends.
This argument escalated to a melee involving 8 people.
Security separated the parties and Police arrived, charging all 8 persons with Affray.
Our client was also charged with Assault Occasioning Actual Bodily Harm and Common Assault.
Our client’s friends hired other lawyers and were advised to plead guilty. They did so and received criminal convictions.
Our client instructed us that he had been defending himself and his friends at all times throughout the incident.
We immediately began formulating a strategy to have our client found ‘not guilty’.
We subpoenaed the building for CCTV which had recorded most of the incident.
At the Hearing, we expertly cross-examined the witnesses and were able to elicit that our client was not the aggressor and his actions were only in defence of himself and his friends.
The magistrate dismissed all of the charges against our client and ordered Police to pay our costs due to their failure to adequately investigate the CCTV footage
Our client was an 18-year-old woman nursing student. She had long-standing mental health issues. Throughout her adolescence, she had been diagnosed with biploar disorder, depression and anxiety.
On the night of the incident, she had consumed a number of alcoholic beverages. She was at a nightclub with a friend of hers. Unfortunately at some stage she became separated from her friend. This triggered her anxiety and she had a mental health episode.
Security guards at the nightclub attempted to restrain her. In the process of this she scratched them leaving marks on their arms and neck.
Ambulance and police were called. When ambulance officers attended she spat on them and they needed to administer a sedative to calm her.
Police eventually attended and arrested her. She kicked police in the court of the arrest.
She was ultimately charged with a number of offences including Affray, Assault Occasioning Actual Bodily Harm, Common Assault, Assault officer in execution of duty and resist arrest.
She came to us with her mother, concerned about the impact any criminal conviction would have on her. We advised her that the best course would be a Section 14 mental health application.
We immediately got to work and arranged for her to commence treatment with one of our preferred forensic psychologists. We also obtained a letter from her treating psychologist and GP.
In addition to this, we obtained evidence as to the impact of a conviction on her.
We also prepared written submissions addressing the relevant factors under Section 14 and 15 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
At court we made persuasive oral submissions which resulted in the Magistrate granting the Section 14 application and dismissing all charges.
Both our client and her mother were overjoyed with the result.
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