Considered a more serious charge than Common Assault, Affray is an offence whereby the accused indulges in an unlawful violent behaviour that causes the members of the public to fear for their safety. When a person indulges in Affray, they use violence or threaten to use violence against another person, thereby, making them fear for their safety.
While there typically is a third person present who feared for their safety, the Prosecution can prove the charges of Affray stating that it would have been threatening to the safety of the third person should they have been present. Verbal threats aren’t enough to make an Affray charge. Physical violence or legitimate threat of physical violence is necessary for an Affray charge to be made.
Originally, Affray was a charge that was used to deal with mass unrest issues, however, because of a rapid increase in such cases in the society, it now applies to cases involving only one person as well. Violent Disorder and Riot are a couple of offences that are similar to Affray.
The charge of Affray applies to a person who uses or threatens to use unlawful violence against another person. To stress on it more elaborately, if a person indulges in physical acts of violence like shoving, punching, kicking, or if they threaten to do so against another person, then they indulge in the offence of Affray.
What’s important to note here is that these violent acts of threats must be severe enough to cause the victim of “reasonable firmness” to fear for their personal safety. The term “reasonable firmness” is a frequent matter of debate amongst lawyers in Courts in such cases.
The offence of Affray is dealt with the utmost seriousness in Courts and results in severe penalties. It can result in imprisonment even if the offender has no previous convictions. And therefore, it is of high importance to seek legal aid at an early stage to fight the case with the workable advice given by experts in the field of criminal defence. At Benjamin Leonardo – The Defenders, it is our mission to provide you with all the legal help you require and to get you successful outcomes.
Call us today on (02) 9283 3033 if you are charged with Affray or any other offence.
In NSW, Affray is considered a serious criminal offence, carrying a maximum penalty of 10 years imprisonment if the accused is convicted in the District Court. In case the conviction is held in the Local Court, the maximum penalty imposed is of 2 years imprisonment. However, a gaol sentence is often the last resort taken by the Court only if it is satisfied that no other penalty is sufficient for the accused.
However, there are certain alternative penalties of less severe nature that the Court may find suitable to your case. These include Home Detention, which is an alternative to full-time imprisonment where the convict is sentenced to stay at home under strict supervision and electronic monitoring. Intensive Correction Order, suspended sentence, community service, good behaviour bond, fines, and section 10 are few of the other alternative penalties that can be imposed on someone guilty of Affray.
If you are charged with Affray, it is advised to seek legal representation immediately. Contact our criminal defence law firm to schedule a consultation.
For you to plead guilty of Affray in the Court, the prosecution must prove the following beyond a reasonable doubt:
- That you used physical violence or threatened to use violence against another member of the public.
- That your conduct caused the person at the scene of the crime to fear for their personal safety.
- That your conduct would cause the person to fear for their personal safety if they were present at the scene of the crime.
Remember that pleading guilty of Affray before the Court makes you appear remorseful, which may get the lawyer to reduce the charges against you through the way of Section 10. Section 10 helps your case in two following ways:
- You are discharged from any possible legal repercussions by having your conviction erased from the record.
- Your conviction will be erased from the record as long as you agree to sign a Good Behaviour Bond whereby you will be required to maintain good behaviour for the duration of the bond. This particular method involves more effort from the part of the accused, but it certainly results in the conviction being dropped.
The significance of Section 10 lies in various aspects, one of them involves determining your chances of attaining employment in future, or your situation at your current employment. Simply put, when required to disclose your criminal conviction before your employers, the charges of Affray may result in your termination at your current employment or may make it difficult for you to secure an employment in future. However, if you are successful in pleading guilty with the way of Section 10, it will help you get rid of any criminal conviction on your record.
Affray is a serious criminal offence in the Court and if you have been charged with this offence, we advise you to call us today and book in a consultation to discuss helpful legal tips and penalty options that best apply to you. At Benjamin Leonardo – The Defenders, we are dedicated to providing you with successful outcomes in your criminal legal battles.
Should you plead not guilty before the Court, the prosecution will have to prove that you indulged in the use of physical violence and/or threatened to use physical violence against the victim thereby instilling in them the fear for their personal safety. However, if the prosecution fails to prove these charges against you beyond a reasonable doubt, then you will not be charged with Affray.
However, if the aforementioned conditions are proven in the Court by the Prosecution against you then a conviction will follow. In such a case, there are certain suitable defence strategies that can potentially help you defend your case.
In case you are accused of the offence of Affray, you can still fight your case with certain defence strategies that best suit your case. Some of these strategies are explained below:
Duress: duress, as a defence strategy, talks about a person who is unlawfully coerced, by use of harmful threats and force, to perform an act that under ordinary circumstances, he or she would not perform. Duress also takes into consideration the same harm, threats or restraints applied to any member of the family of the accused.
Necessity: Often confused with duress, necessity is another involuntary action whereby the accused is compelled to act in an offence to avoid a greater harm or imminent peril. Although a difficult defence strategy to prove in the Court, Necessity is an applicable defence strategy to the case of Affray accused.
Self-Defence: According to the Section 418 of Crimes Act 1900, a person can conduct self-defence if and only if they believe:
- it would ensure the safety of the person accused or of another person,
- it would prevent the unlawful deprivation of liberty of themselves or of another person,
- it would prevent their property from being taken unlawfully,
- it would prevent criminal trespass.
In order to determine the use of self-defence strategy, a two-limb test will be conducted, which involves:
- The first limb of the test, also known as the subjective test, determines whether there’s an absolute, reasonable possibility that the accused deemed conducting self-defence necessary to protect himself or herself. It is determined from a subjective point of view considering the thought process and personal characteristics of the accused at the time they conducted self-defence. Simply put, it involves dissection and analysis of the accused person’s point of view.
- The second limb of the test involves a completely objective assessment of the proportionality of the accused person’s conduct to the situation they subjectively believed they faced.
The purpose of this test is to not to see if any reasonable person would conduct self-defence but to see if the accused person’s conduct was reasonable. Additionally, factors like physical circumstances in which the accused acted in self-defence, age, gender and health are taken into account when self-defence strategy is relied upon. Intoxication, on the other hand, is taken into account in the first limb of the test.
If you use self-defence strategy to fight your case, the prosecution will then have to prove without a reasonable doubt that you did not act in self-defence and therefore, it should not apply to the charge imposed on you.
Consequently, if you are charged with affray or with any other offence, it is important that you have legal aid with you right from an early stage. At Benjamin Leonardo – The Defenders, we house a team specialising in criminal defence laws that can help you figure our defence strategies that best apply to your case.
Classified as a “Table 1” offence, the offence of Affray can be chosen to be dealt in the District Court by the Prosecution or the person accused. However, if both the parties fail to make this election, the case will be dealt with in the Local Court.
However, regardless of the type of Court the case is fought in, with Benjamin Leonardo – The Defenders on your side, you will be able to put up a solid front. Carrying a combined experience of 29 years, we are one of the leading criminal law firms in Sydney.
For honest and reliable advice, contact us to schedule a consultation.