Affray Offences and Defences in NSW

Poppy Morandin.


Police have arrested three men and are searching for a fourth, after a brawl which saw three teenage girls allegedly assaulted in the CBD on Mardi Gras.

At nearly 10pm at night, emergency services were called to Pirrama Park in Pyrmont, after reports were made that a group of people were fighting.

It is alleged that the group were engaged in a verbal argument, before three females – aged 16, 16 and 15 – were repeatedly assaulted.

Officers from Sydney City Police Area Command, with assistance from the Public Order and Riot Squad, attended and arrested three men a short time later on Pirrama Road near Murray Street.

The men were aged 29, 23 and 21.

They were taken to Day Street Police Station, where the older two men were charged with affray and two counts of common assault.

The younger man was charged with affray and common assault.

They were refused bail by police and appeared before Parramatta Bail Court where they were formally bail refused to appear before Central Local Court.

Police have noted that investigations into the: “circumstances surrounding the incident are ongoing.”

A witness and friend of the girls claimed they stepped in to protect their male friends.

Officers have recently published CCTV images of a fourth man, showing a man of Caucasian appearance, aged in his early 20s, with short brown hair.

They believe he may be able to assist with their inquiries.

The incident was captured on footage, and shows the men allegedly punching, dragging the females by their hair, and kicking them whilst they were on the floor.

One section even appears to show a girl being dragged by her hair, thrown over a concrete ledge and stomped on the head.

During the video, audio clips include the women yelling: “she’s down there, she’s really badly hurt” and “he just hit a f*** girl”.

The Police Commissioner, Mick Fuller told 2GB’s Ben Fordham that he has “never seen such disgraceful footage”.

“They are cowards. Irrespective of what sentence they may get they should be tagged cowards forever.” he continued.

Affray Offences and Defences in NSW

‘Affray’ is criminalised under section 93C of the Crimes Act 1900 (NSW).

Pursuant to section 93C of the Crimes Act 1900 (NSW), a person who uses or threatens violence towards another person, and whose conduct would cause a person of ‘reasonable firmness’ present at the scene to fear for their safety faces a maximum penalty of 10 years in jail.

A threat cannot be made by the use of words alone.

When two or more persons are involved, their conduct will be taken together for the purposes of considering whether a person present would hold a reasonable fear.

No person of reasonable firmness need actually be, or be likely to be, present at the scene.

This means that the ‘person of reasonable firmness’ prescribed in the legislation is often hypothetical in that an accused may be found guilty of affray, even if no other uninvolved person was at the scene, or was even likely to be at the scene, to observe the violence.

The offence can be committed in private as well as public places.

A person is guilty of affray only if the person intends to use or threaten violence or is aware that their conduct may be violent or threaten violence, pursuant to section 93D of the Crimes Act 1900 (NSW).

As affray usually involves a continuous course of conduct, it has been found that the prosecution does not need to identify or prove any one particular incident but rather the general nature of conduct as a whole (Smith [1997] 1 Cr App R 14).

This enables the prosecution of individuals in situations such as where large numbers of persons are involved in fluid brawl, and identification of individual acts may not be available.

Under the Criminal Procedure Act 1986 (NSW), affray is a ‘Table 1’ offence which means it will be dealt with in the Local Court, unless the prosecution or defendant elects to have the matter proceed by way of trial on indictment.

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