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Criminal Law - Affray

Date: December 08, 2011

Authors: LAC Lawyers

LAC Lawyers are experienced Criminall Lawyers who advise clients on Affray charges and Violent Disporder Charges. If you have been charged with Affray contact LAC Criminal Lawyers on 1300 799 888.

The legislation introducing the offence of Affray into the Crimes Act in 1988, was prompted, among other things, by the difficulties for the prosecuting of the persons involved in the lengthy trials arising out of the clash between outlaw motor cycle clubs at the Viking Tavern, Milperra in September 1984 (“the Milperra Massacre’) and the clash between spectators and Police at Mount Panorama, Bathurst in April 1985 (‘the Bathurst riots’), which had attempted a prosecutions under the then common law offence of affray.

In the same year, 1998 the Summary Offices Act was enacted and included the offence of Violent Disorder. This offence was introduced, according to the then Attorney General because there was a need for an ‘offence akin to riot’ which has been demonstrated by instances of group disorder, particularly among spectators at sporting events.

Elements of the Offence: Affray

Affray is an indictable offence and the offence appears at Section 93C of the Crimes Act (NSW).

  1. A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.  [If dealt with summarily maximum fine is $11,000 and or 2 years imprisonment].
  2. If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
  3. For the purposes of this section, a threat cannot be made by the use of words alone.
  4. No person of reasonable firmness need actually be, or be likely to be, present at the scene.
  5. Affray may be committed in private as well as in public places.
  6. The meaning of ‘Violence’ is defined as (Section 93A): - In this Division:
    1. "violence" means any violent conduct, so that: (a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and
    2. it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

So affray is an offence involving personally threats and injury and but does not include oral threats.

The penalty is potentially severe and can involved two or more persons acting together and it is their overall behaviour that is then considered.

Elements of the Offence: Violent Disorder

Violent disorder on the other hand, is a summary matter and carries either a maximum find of $1,100 and or 6 months imprisonment. The meaning of the section is set out in the Section 11A of the Summary Offence Act (NSW): -

  1. If 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of 
  2. reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence is guilty of an offence.
  3. It is immaterial whether or not the 3 or more persons use or threaten unlawful violence simultaneously.
  4. No person of reasonable firmness need actually be, or be likely to be, present at the scene.
  5. An offence under subsection (1) may be committed in private as well as in public places.
  6. A person is guilty of an offence under subsection (1) only if he or she intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
  7. Subsection (5) does not affect the determination for the purposes of subsection (1) of the number of persons who use or threaten violence.
  8. In this section: "violence" means any violent conduct, so that:
    1. it includes violent conduct towards property as well as violent conduct towards persons, and
    2. it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

Violence under this offence includes behaviour that threats property as well as people.

The wording in both sections is similar, and both sections are based on English legislation.

Note how the summary offence differs from the indictable offence, apart from the penalty range. 

The Summary Offence Act requires a minimum of three or more people to be involved in use or threatened use of personal violence and the behaviour called into question can also relate to property.

The question (assuming that there are least three persons involved in violence towards other persons) then arises, as to what would prompt the police called to investigate violent behaviour to provide one charge over the other, i.e. to prefer the summary offence to the indictable offence or visa versa? It would appear that the answer is a matter largely left to the discretion of the investigating officers.

The authorities regard affray as typically involving a group of people who may be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows. There is a distinction to be taken at the point of sentencing between premeditated affrays and those which break out spontaneously, which would assume significance at the point of sentencing. The spontaneous form of affray has echoes of the stated aims of the summary offence when it was introduced, i.e. ‘a need for an ‘offence akin to riot’ which has been demonstrated by instances of group disorder, particularly among spectators at sporting events.’

The other matter of note is that the wording of both the indictments provides for a possible defence of ‘lawful violence’ which would normally be associated with a self defence argument and the proportionality of the response would then examined.  The moral of the story, think twice before joining into any altercation prompted by ideals of fair play and helping out ‘a mate’ because the self defence issue (for yourself or of another) may not extend to you and if you are charged with affray the penalties can be quite severe.

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