What is Affray in NSW?

Unlike assault charges, including common assault and assault occasioning actual bodily harm and grievous bodily harm, which are considered offences against individuals, affray is a more serious type of charge carrying a maximum term of up to 10 years imprisonment, and is considered an offence against the public order to protect the peace.

Affray is where you use or threaten to use unlawful violence towards another person, where your conduct would cause any third person of reasonable firmness present at the scene to fear personal safety (to be upset or frightened). This is reflected in section 93C of the Crimes Act 1900 (NSW).

This means that you can be guilty of affray if:

  • A 3rd person wasn’t actually present at the scene to observe your violence; and
  • Where hypothetically if a 3rd person of reasonable firmness had been present at the scene he/she might reasonably be expected to have been terrified from your violence.

Affray can therefore be committed without any evidence of their actually being the 3rd person present at the scene to attend court as a witness to say he/she feared personal safety from being able to view your conduct.

Affray can also occur in either a private or public place regardless of whether or not a 3rd person is even likely to have been present at the scene of your violent conduct.

For example, Lord Goddard CJ in R v Sharp [1957] 1 QB 552 at 559 said, “if two lads indulge in a fight with fists, no one would dignify that as an affray, whereas if they used 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.

Misuse of Affray by Police?

In 2010, 2,835 charges of affray were finalised in the Court in NSW, 815 in Children’s Court, and 93 in the Higher Courts.

Affray is an often misunderstood and misused charge which can lead to devastating consequences for the accused person.

Whilst an affray offence carries a maximum penalty of up to 10 years imprisonment, in comparison, an assault occasioning actual bodily harm charge carries a maximum penalty of up to 5 years.

A common assault charge carries a penalty of up to 2 years imprisonment.

These assault charges are considered offences against an individual and normally require the police to go through the hurdles of having a witness available to come to court to give evidence so that the police can prove the elements of the offence.

These types of assault charges normally require police to prove who the actual victim was, the absence of consent, any injuries the victim sustained, and the alleged conduct constituting the assault.

Without the alleged victim and/or witnesses to prove those things, the police will generally be unable to prove those assault charges against you.

For affray charges, the police don’t need to go through the hurdles of producing a victim who was subject to the alleged violence, nor do the police need to produce that third person to attend court as a witness to give evidence of being frightened from viewing your alleged behaviour.

All that the prosecution needs to prove for an affray is evidence of your violent conduct towards another person- usually done by showing video evidence without the need to identify an alleged victim.

Unfortunately, Affray appears to be increasingly used as a charge by the prosecution against individuals for minor assaults against other individuals where the prosecution doesn’t have enough evidence to prove an assault.

For those reasons a charge of affray is easier to prove and more attractive to prosecute than other perhaps more appropriate assault charges that carry far less maximum penalties than affray.

Affray is intended to be used by the prosecution for serious breaches of the peace to protect people nearby from the fear of violence.

This raises concerns of why individuals should be charged with a far more serious offence of affray, be faced with the prospects of a criminal conviction and much heavier sentence in circumstances the more appropriate approach by police should have been a lesser serious assault charge with the prospects of a much lighter sentence.

Arguably, the police convenience in prosecuting shouldn’t dictate which charge police decide to proceed with against an individual.

The Bikie Gang Brawl at Sydney Terminal Airport

The case of Aouli v R [2012] NSWCCA 104 involved the offender who was a Comancheros motorcycle club member, who happened to be in the same flight as the president of the Hells Angels motorcycle club.

After the flight had landed at the Sydney airport terminal, a fight broke out between the two motorcycle club members in the terminal.

A Hells Angels member was stabbed and beaten to death with a metal post by an unknown person.

The offender here Mr. Aouli didn’t actual cause any injuries to anyone, however, he followed the instructions of his club president to arrange for more Comancheros members to the airport- which he did by making phone calls before the start of the flight, and after it landed.

The Court found that “significant fear was undoubtedly engendered in members of the public”.

Mr. Aouli, 28 years of age at the time, was charged and pleaded guilty to Affray and Manslaughter. He has previous criminal convictions of knowingly making a misleading statement, importing prohibited imports and assault occasioning actual bodily harm in company.

He was sentenced to 2 years and 5 months imprisonment for the affray charge, and for the manslaughter charge he was sentenced to a non-parole period of 3 years, with the balance of 2 years and 8 months on parole. The two sentences were to run partly at the same date.

What are the Defences to Affray?

You will be Not Guilty for Affray if any of the following defences apply to you:

  • Where you did engage in violence or threats, however, the degree of violence used is not to the extent that it might reasonably be expected to terrify a person of reasonably firm character to constitute affray.
  • Where the violence alleged consists only of verbal threats.
  • You acted in self-defence, where you did what you did to protect yourself, and where that response was a reasonable response in the circumstances as you perceived it at the time. for more info on this, see self defence in Australia.
  • Duress.

What if I want to plead guilty to Affray?

Before pleading guilty and proceeding to an affray sentence, it’s advisable to speak to an experienced criminal lawyer in affray cases.

If you decide to plead guilty, it’s important to know that you can increase your chances at getting the lightest possible penalty by doing the following:

  • Negotiate the police facts and charges. You may be able to change the police facts to reflect more of the truth of what really happened. This may put you in a much better light when the Magistrate reads the police facts right before sentencing you. This will certainly increase your chances of getting a lighter punishment. Sometimes, you may even be able to negotiate to get other charges dropped upon pleading guilty to affray if you are also facing more charges. Being sentenced for one offence would likely result in a better outcome than multiple offences.
  • Psychologist or counselling report. If you have a drug or alcohol problem, or if you may be suffering a mental condition or illness such as depression, anxiety, schizophrenia etc, then getting a report expressing this with a treatment plan can significantly improve your court outcome. The court will be interesting to know whether you’re getting treatment for it.
  • Pleading guilty to a charge at the first court date will land you a 25% discount off the punishment the Magistrate ends up giving by law. The later you plead guilty, the more that discount drops. This can produce a more lenient court outcome.
  • Good character reference for court: Getting properly structured powerful letters from family and friends expressing your character, any remorse, insight and shame of committing the offence can also help reduce the penalty in court.

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

View all posts by Jimmy Singh