Criminal Law - Affray

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.

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.

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): -

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.