Affray:

Section 93C of the Act provides the elements of the offence of affray. Essentially, for the offence of affray to be made out, the following must take place:

1. A person uses or threatens to use unlawful violence towards another person; and
2. The conduct of the person is such that it would cause a third person who is of reasonable firmness to fear for his or her safety.

If more than one person is involved, the conduct of all individuals will be taken into account to determine whether the use of or threat of use of violence would make a person of reasonable firmness to fear for his or her safety. The offence is not limited to the public setting. A person may be arrested for the offence if committed in a private setting including the defendant’s home.

For the offence of affray to be made out, a person of reasonable firmness present at the scene must feel fear for his or her safety. It is a hypothetical question and the Courts have had extensive discussions on the need for a person of reasonable firmness to be present at the scene.

The offence of affray originates from the common law criminal offence of two or more persons fighting and causing terror to the public. The English courts have had differing opinions on the need for a third person to exist. The case of Leeson v. DPP (2010) 174 JP 367 finally decided that there is in fact no need for a third person to be present. The fact that hypothetically, it could be concluded that, if a third person was present and that third person was a person of reasonable firmness who would fear for their safety due to the actions of the defendant, is generally sufficient for the offence of affray would be made out.

The legislation in New South Wales makes it clear that no actual person of reasonable firmness need be present for a defendant to be convicted of the offence. However, the question of what constitutes a person of reasonable firmness is still a very open discussion. It is a subjective test. You should seek legal advice to ensure that you are aware of your legal rights. The Criminal Lawyers at Navado Lawyers & Solicitors can assess your individual case and provide you with the appropriate advice.

Affray is an indictable offence and the penalties can be quite severe. Under the Act, the maximum penalty for a conviction of affray is ten (10) years imprisonment. It is an extremely heavy penalty. If you are facing a conviction for affray, you should seek legal advice immediately.