“Affray” is where one uses, or threatens to use, unlawful violence towards another person and causes a fear of personal safety, that individual to be upset or frightened. This is covered in Section 93C of the Crimes Act 1900 (NSW).
One can also be guilty of affray if:
- A third person was present at the scene to observe your violence; or
- A third person of reasonable firmness had been present at the scene and was personally affected by this violent behaviour.
Affray can occur in either a private or public place, regardless of whether or not a third party is even likely to have been present at the scene. In the Matter of R v Sharp (1957), the Court outlined that: “if two lads indulge in a fight with fists, no one would dignify that as an affray… whereas if they use broken bottles or knuckle dusters and drew blood, a jury might well find that it was, as a passer-by might be upset and frightened by such conduct.”
This offence carries a maximum penalty of up to 10 years imprisonment. An assault, for example, causing bodily harm only carries a maximum penalty of 5 years. An assault charge carries a maximum penalty of up to 2 year in prison.
The prosecution only needs to prove, by way of evidence, the violent conduct inflicted upon another person. This can be substantiated by video recordings, without the need to identify an alleged victim! Accordingly, affray appears to be increasingly implemented as a charge against individuals, in cases of minor assault. In addition, affray has been raised in instances where the prosecution lacks evidence to prove an assault charge.
In the recent matter of Aouli v R (2012) NSW CCA 104, Mr Aouli did not cause any injury to anyone. However, the Court found that the significant fear was “undoubtedly endanger[ing] members of the public.”
A charge to affray can only be rebutted by proving that the nature of the violence was undertaken as a means of self-defence or under duress. A defence may also be raised on the basis that the conduct could not, or did not, cause any witness to be alarmed.
In the event that you get charged for assault or affray, please do not hesitate to contact Freedman & Gopalan Solicitors (02 8917 8700).