What is affray?

Affray refers to a use of violence which causes fear in other people. A typical example would be a brawl in a bar, but could also include road rage, taking part in a violent public demonstration, or threatening someone.

 

Affray charges in NSW

Affray is a crime under section 93C of the Crimes Act 1900 (NSW), it occurs when:

  • A person uses or threatens unlawful violence towards another, and
  • This conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.

It is also worth noting that:

  • A person of reasonable firmness does not need to be present.
  • A threat cannot be made by the use of words alone.
  • If two or more people are involved, their conduct is considered together to determine whether an offence was committed.
  • The offence can be committed in a public or private place.

 

Maximum jail sentences for affray

Most affray charges remain in the Local Court where the maximum jail sentence is two years. Penalties for a first offence typically include a fine, Conditional Release Order, or Community Correction Order. It is also possible for no conviction to be recorded.

If the matter is heard in the District Court, however, the maximum jail sentence is 10 years. People who are convicted of affray in the District Court often receive a prison sentence.

Learn more about other possible penalties.

 

Riot charges

Riot is a crime under section 93B of the Crimes Act, and refers to a large group of people using violence in a way which causes public fear. It is one of the most serious public order offences and occurs when:

  • 12 or more persons who are present together,
  • Use or threaten unlawful violence for a common purpose, and
  • Their collective conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.

It is also worth noting that:

  • A person of reasonable firmness does not need to be present.
  • A threat cannot be made by the use of words alone.
  • The 12 people need not use or threaten unlawful violence simultaneously.
  • The offence can be committed in a public or private place.

Each person involved in a riot could be found guilty and be liable for a maximum penalty of 15 years imprisonment. Prison sentences are frequently imposed by the courts for this offence.

 

Violent disorder charges

Violent disorder refers to a group of people using violence to cause fear in others. It occurs when:

  • Three or more persons present together use or threaten unlawful violence, and
  • Their collective conduct would cause a person of reasonable firmness to fear for his or her safety.

Violent disorder is a crime under section 11A of the Summary Offences Act 1988 (NSW).

Each person using or threatening unlawful violence can be found guilty of violent disorder and be liable for up to six months imprisonment. A prison sentence is uncommon, however.

 

Frequently Asked Questions

I’ve been arrested for fighting in public. What should I do?

You should contact a defence lawyer as soon as possible after you are arrested. A good defence lawyer will assist you in presenting the strongest case possible and help you avoid prison.

Where will the matter be heard?

Affray and riot will ordinarily be dealt with in the Local Court. In rare circumstances, they may be heard in the District Court, but this would usually only occur if a defendant is also charged with further more serious offences that must be dealt with by the District Court.

Violent disorder is a summary offence and can only be heard in the Local Court.

Can an affray charge be used inappropriately?

As it is an easier offence to prove in court, affray is often used by police in circumstances where a charge of assault or offensive conduct might be more appropriate.

We have defended many matters where two or more people involved in a fight were charged with affray, in circumstances where:

  • The fight only involved those people.
  • There was no risk to others.
  • Heavily armed police stood and watched.

Would a person of reasonable firmness have anything to worry about in those circumstances? No way.

Can I get a section 10 for affray?

section 10, pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act (NSW), is where the court finds the offence proven (or you plead guilty), but does not record a criminal conviction. It is possible to receive a section 10 for affray, but this does not occur frequently.

What are the possible defences to an affray charge?

Self-defence is a possible defence to a charge of affray. The Crimes Act specifies that the violence used for an affray offence must be unlawful. Violent behaviour is not considered unlawful if it is used in self-defence. To establish self-defence it must be shown that:

  • The accused believed their conduct was necessary in order to defend themselves, and
  • The accused’s actions were a reasonable response in the circumstances as they perceived them.

The conduct cannot be unreasonable or excessive. For instance, if someone pokes you in the chest, you have no right to belt them over the head with a baseball bat.

Learn about other potential defences that might help you avoid a criminal conviction.

Affray vs. assault – what’s the difference?

Assault is considered an offence against a person while affray is an offence against the public peace. Assault can also be more difficult to prove as the prosecution may need to show that physical damage was inflicted, and that the victim did not consent to the behaviour.

However, both offences involve the use or threat of violence committed in a public or private space, and many acts which constitute affray could also be charged as assault.

Is affray a more serious charge than assault?

Affray can be considered more serious that assault. Affray was added to the Crimes Act in 1988, after a bikie shooting in Milperra. Many of those arrested were charged with the common law offence of affray. The maximum penalty for affray was doubled in 2005 after the Cronulla Riots. It is a charge which can be used in very serious circumstances.

The maximum penalties for assault charges are lower; common assault attracts a maximum penalty of two years imprisonment, while the maximum penalty for affray is 10 years imprisonment. Ultimately, the severity of the sentence will depend on the specifics of the case.

What is the difference between affray and violent disorder?

Although the elements of these offences are very similar, violent disorder is a summary offence dealt with in the Local Court. It is considered a less serious offence and is primarily used for minor disturbances. This is reflected in the lower penalties. It is also worth noting that unlike affray, the violence can be directed against property.

What is the difference between riot and violent disorder?

Riot is one of the most serious public order offences intended to criminalise violent protests or disorderly mobs. It covers situations where large groups of people use violence to further a common purpose. Violent disorder is a less serious offence and primarily used for minor disturbances. It is a summary offence dealt with in the Local Court. Those involved in the disturbance do not need to act with a common purpose, and only three people need to be present, far less than the 12 required for riot.

How can we help?

We have over 55 years of experience in successfully defending affray, riot and violent disorder charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.

Affray, Riot and Violent Disorder Case Studies