Affray Offences and Penalties in New South Wales (NSW)

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Like other Australian states, the State of New South Wales frowns upon all forms of unlawful violent behaviour. When such conduct is such that it puts the safety of others at risk, it is even direr.

This behaviour is what the law refers to as affray. And the State has established laws to discourage and prevent such acts.

This article will look at such laws and their implications.

If an individual is convicted for an Affray offence, the offence will show up as a disclosable court outcome (DCO) on a criminal history check.

What is Affray?

As per Section 93C of the Crimes Act 1900 (NSW), affray is when a person carries out or threatens unlawful violence such that it causes others around to fear for their safety. Any person who commits this offence faces a maximum penalty of ten years in prison.

However, this maximum punishment can only be given by a District Court. If a Local Court presides over the case, it can only impose a prison sentence of at most two years.

However, the prosecution must prove some elements before the court can convict a defendant. These elements include:

#1. The Accused Used or Threatened to Use Unlawful Violence

A person must have used or threatened unlawful violence to be guilty of affray. However, this violent behaviour must involve some kind of physical activity.

Mere words, no matter how threatening, are not enough. And neither does simply having weapons when speaking amount to the crime of affray.

Nonetheless, if the weapon was visible or the accused brandished it openly, they may be guilty of affray.

It is also important to note that as per Section 93A of the Crimes Act 1900 (NSW), violence for the purposes of affray is not limited to actions that caused or intended to cause injury or damage. Consequently, throwing an object can be unlawful violence even if it falls short or does not hit anyone.

Finally, the accused's intention at the time of the offence is not a vital element of affray. Therefore, the prosecution does not have to prove that the accused intended to use unlawful violence.

Instead, they simply need to show that the defendant was aware or was reckless to the fact that their conduct was violent or threatened it.

#2. It was in a public or private place

Certain states require that a violent act is in a public place before the law considers such conduct affray. However, this element is not present in New South Wales law.

A person can be guilty of affray whether or not the crime occurred in a public place.

#3. It caused someone of “reasonable firmness” to fear for their safety

According to Section 93C, Crimes Act, the accused's violent conduct must have been severe enough to cause an individual of “reasonable firmness” to fear for their safety.

However, the law does not define the phrase "a person of reasonable firmness." Nonetheless, NSW courts have held it to mean an average or ordinary person who is neither especially courageous nor fearless.

Note that despite this element, the prosecution does not have to show that someone of reasonable firmness was present at the scene. Instead, they only need to prove that the conduct would have been threatening to the safety of another had they been present.

Additionally, they must show that the hypothetical third party would have been afraid. Afraid here means terrified, not nervous, uncomfortable, or annoyed.

What If More Than One Person Used Or Threatened To Use Violence?

Suppose there were multiple people involved in the offence of affray. In that case, the prosecution does not need to prove that each person’s behaviour amounted to affray.

Instead, the court will consider the defendants' behaviour as a group. For example, was their collective conduct enough to incite fear in another? If it were, all the defendants would be guilty of affray.

What Court Handles Affray Offences?

The Courts with the jurisdiction to determine affray cases are the Local Court and District Court. However, the Local Court handles such matters more often than not unless the defendant or prosecution elects otherwise.

In such instances of an election, the case will go to the District Court. There, it will be heard by a District Court Judge and a jury panel of 12 members.

On the other hand, if the matter remains at the Local Court, the Local Court will determine the case alone.

Defences to a Charge of Affray

Facing affray charges is serious and can lead to years in prison. Fortunately, even if the prosecution proves the required elements, an accused can still fight a conviction.

Below are some defence strategies an accused person can use against an affray charge. Once a defendant can prove any of these defences, the burden of proof shifts to the prosecution.

This principle means that the prosecution must prove that the defence is a lie or does not apply to the case.

This defence is the most common in cases of affray and is a product of Section 418  of the Crimes Act 1900 (NSW).

However, the effectiveness of this defence is only possible if the accused person can prove that the violent behaviour was necessary to:

• Ensure their safety or that of another person,
• Hinder someone else from taking their property unlawfully
• Prevent the illegal deprivation of their liberty or that of another person,
• Deter criminal trespass.

The defendant must also prove that they genuinely believed the violent action was appropriate under the circumstances.

By raising the defence of duress, the accused asserts that someone threatened or coerced them into committing the crime. But, first, they must prove that the threat was imminent and impending, present and continuing.

It is not enough for the defendant to feel fear of retaliation – an actual threat must be made.

This defence only applies if the defendant committed an affray because it was necessary to avoid irreparable injury or protect another person.

The accused person raising this defence must prove that they believed they (or the other person) were in a position of imminent peril. They must also show that their action was reasonably vital to prevent that harm.

Bottom Line

Facing an affray charge is no small matter. The accused person needs legal guidance and representation to get the best possible outcome.

Will an Affray offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a heavy vehicle offence, the offence will show up as a disclosable court outcome (DCO) on the results of a police background check.

Individuals can obtain a background check online via the Australian National Character Check - ANCC® website.

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