‘Affray’ is an offence whereby a person conducts themselves in public in such a manner that results in people fearing for their safety. It is usually considered more serious than a charge of common assault. Affray carries a maximum penalty of 10 years imprisonment.
Affray was originally a charge that was levelled for mass unrest, but has become increasingly common in regular situations involving one person as well.
The charge of affray also includes the use or threat of violence in circumstances where a person of “reasonable firmness” would fear for their safety. The phrase “reasonable firmness” is frequently debated in court by lawyers in such cases.
For the offence of affray to be proven, another person need not be present at the scene of the crime. It simply means that if another person was also present, and they were of “reasonable firmness”, the offence is proven if they would have feared for their safety.
What is the difference between Affray and Assault?
Both charges of Affray and Assault usually involve some degree of violence, but assault deals with the violence itself. Affray involves a threat of violence or the use of violence in order to make someone fear for their safety. In this case, there would typically be a third person present who feared for their safety. Even if the third person is not present, all prosecution has to prove is that someone would’ve feared for their safety should they have been present.
Verbal threats are not enough for an affray charge to be made. There has to be physical violence or some legitimate threat of physical violence in order for this affray charge to remain.
What are some similar offences?
Violent disorder is when 3 or more people who are present together, use or threaten to use violence towards people or property. The conduct of these people when taken together, must cause a person a person to fear for their safety. The maximum penalty for violent disorder is 6 months imprisonment or 10 penalty units.
Riot is when there are 12 or more people acting with a common purpose in mind in a way that would cause a person to fear for their safety. This is quite a serious offence as it carries a maximum of 15 years imprisonment. Affray and Self Defence
It is entirely possible to have the charge of affray dropped if a successful self defence argument is relied upon. If you were found to be acting in such a manner solely for the purpose of defending either yourself or another person, it is entirely possible to have those charges dropped altogether.
Affray and Community Service
Another possible way to clear yourself of affray charges is to have your lawyer argue for community service instead of a gaol term. If your charge was sufficiently light enough, there is a very good chance that this ruling can remain and so ensure that you only have to face community service as opposed to a gaol term. If you participated in some sort of brawl because of the fact that someone close to you was assaulted, or if you show significant remorse for the crime, there are ways for you to be enrolled in anger management courses while participating in community service as well.
Remorse and willingness to change is the key here, as those without remorse or who are set in their violent ways, are likely to receive prison terms as opposed to community service. Even for those who have a record of violent crimes in the past, it is imperative to get the right representation to argue the case, so that you can get your punishment reduced should you be charged with affray.
Pleading Guilty/Not Guilty To The Charge Of Affray
Pleading Not Guilty
Should you plead not guilty to the charges, the prosecution will have to prove that you either used or threatened to use physical violence against another person, and that your conduct would cause someone else who was at the scene of the crime to fear for their safety.
If both of these elements cannot be proven beyond reasonable doubt, then you will not be charged with affray. If both elements are proven, then a conviction will follow. The only way this can be prevented is to use the defence that duress was used. ‘Duress’ is when action is taken involuntarily because threats of violence or death against themselves or their family are made.
Another defence that can potentially be used is necessity. ‘Necessity’ is another involuntary action, this one taken to avoid some sort of evil from being done to the person or the avoidance of some kind of imminent peril. This is similar to the example of affray, but the charge relates to some sort of imminent peril instead of threats of violence or death.
You can also choose to use the argument of self-defence. This is somewhat self-explanatory, but it involves acting out of the belief that the action will protect either the person themselves or another person from suffering harm, or to prevent the liberty of themselves or another from being taken, to protect property from being taken illegally, or to prevent criminal trespass. All of this is done with the intent to prevent such harm and all in proportion. The actions taken to prevent the crime should not be overly excessive.
In order to determine all of this, what is called the “two-limb” test is used. The first limb involves determining if the person who is accused, believed that their conduct was done only to protect themselves or another party from harm. This is also known as the subjective test, as it sees what the accused person saw and thought during the offence that happened. It allows their point of view to be dissected and analysed.
The second limb of the test is what is known as the objective test. This is done to see if the accused person’s actions were proportional to the act that had been committed. This makes sure that the action that was supposedly done in self-defence was not excessive and beyond the action that they responded to.
This reasonable aspect relates to the act and not the person. The action that the person carried out will be analysed.
Some factors need to be taken into account once self-defence is relied upon. These include the physical characteristics of the surrounding area, age, health, and gender. Levels of intoxication are taken into account in the first limb of the test. The moment that self-defence is raised, the prosecution will then have to prove (without any reasonable doubt) that self-defence was not an aspect of the charge.
If you tend to agree with what has been laid as a charge against you, you have the option of pleading guilty. This looks good in the eyes of the court, as it shows that you have remorse and contrition. In this case, your lawyer can often get your charges reduced. The offence of affray carries a maximum penalty of 2 years in the Local Court and a maximum penalty of 10 years in the District Court.
There is a way that you can get this charge removed from your record and have no penalty recorded or carried out against you. This is through what is referred to as a section 10. This is important as a conviction for an offence such as affray may result in you having to disclose your conviction to current and future employers. Any disclosure about a criminal conviction may lead to termination of your employment or preventing you from gaining employment in the future.
There are two ways that you could use section 10 to rid yourself of any possible conviction. The first is that you are simply discharged from any possible legal repercussions by having your conviction erased.
The second is that your conviction will be struck from your record as long as you sign a bond of good behaviour and then maintain your good behaviour for the duration of this bond. This method requires more effort on the part of the accused, but it still ultimately results in a conviction being dropped.
There are a variety of charges that the court will consider and impose a section 10. These tend to be less serious crimes as well as ones that can be dealt with in Local Court. There are occasions, however, where more serious charges can be dealt with by way of a section 10. These are usually cases where there was some sort of remorse or other mitigating circumstances that warrant this charge being struck from the offender’s record.
In order to determine whether a section 10 is warranted, the court will take into account the character of the person, their age, their mental condition as well as their health. Another aspect that will be taken into account is the trivial nature of the offence, whether or not it was particularly serious and the like. They will also consider any extenuating circumstances that were involved in the case in order to rule on whether or not a section 10 is appropriate. There are a variety of other matters that are not limited to the above that the court can keep in mind when considering a section 10 in a case.
When you are looking at the legal lexicon that’s on the books, it’s very easy to get caught up in all of the legal jargon and miss out on the intent behind the law. Really, this all makes perfect sense when you think about it. The law as it stands wasn’t written with the average person in mind, but rather the attorney with years or even decades of experience at interpreting the law and figuring out how to get it to work for their clients. With that said, this list should help you to better understand the charge of affray in NSW.
When looking at your legal paper work it is easy to get caught up in the legal jargon and misinterpret the intent behind the law. The law was not written with the average person in mind, but rather a Solicitor with years of experience at interpreting the law.
If you are charged with Affray or any other offence, contact Benjamin & Leonardo Criminal Defence Lawyers on (02) 9283 3033.