An affray charge can be prosecuted even where no person was actually present who feared for their safety, because the legislation applies an objective test based upon whether a person of reasonable firmness present at the scene would have feared for their personal safety.

At Chidiac & Associates, we provide strategic criminal defence representation to individuals facing affray charges throughout Sydney and New South Wales. We understand the importance of carefully examining the circumstances surrounding the alleged violence, the conduct of all persons involved, witness evidence, CCTV footage and the circumstances in which police became involved.

We approach every matter with meticulous preparation, detailed analysis of the Prosecution evidence and a commitment to protecting our clients' rights throughout the investigation, court proceedings and sentencing process.

What is Affray?

Affray is an offence under section 93C of the Crimes Act 1900 (NSW).

A person commits affray where they use or threaten unlawful violence towards another person and their conduct is such that it would cause a person of reasonable firmness present at the scene to fear for their personal safety.

Affray is different from a straightforward assault charge.

The Prosecution does not simply have to prove that violence occurred. It must establish the additional statutory requirement that the conduct was of such a nature that a person of reasonable firmness present at the scene would fear for their personal safety.

Affray can be committed:

• by one person;
• by two or more people acting together;
• in a public place;
• in a private place; and
• even where no person of reasonable firmness was actually present or likely to be present.

The Prosecution bears the burden of proving every element of the offence beyond reasonable doubt.

Legislation — Section 93C Crimes Act 1900 (NSW)

Section 93C provides that 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 their personal safety, is guilty of affray.

The section also provides that:

• where two or more people use or threaten unlawful violence, their conduct may be considered together;
• a threat cannot be made by words alone;
• a person of reasonable firmness does not actually have to be present, or likely to be present, at the scene; and
• affray can be committed in both private and public places.

Elements of Affray

To establish a charge of affray, the Prosecution must prove the required elements beyond reasonable doubt.

1. The Accused Used or Threatened Unlawful Violence Towards Another Person

The Prosecution must prove that the accused person either:

• used unlawful violence towards another person; or
• threatened unlawful violence towards another person.

The alleged violence must be unlawful.

The nature of the conduct will depend upon the circumstances of the particular case and may involve physical violence, fighting, striking, kicking, pushing or other violent conduct.

Where a threat is alleged, section 93C specifically provides that a threat cannot be made by the use of words alone. There must be conduct beyond words for the statutory requirement to be satisfied.

2. The Conduct Would Cause a Person of Reasonable Firmness to Fear for Their Personal Safety

The Prosecution must establish that the accused person's conduct was such as would cause a person of reasonable firmness present at the scene to fear for their personal safety.

This is an objective test.

The Prosecution does not simply need to establish that the particular person involved was frightened, upset or intimidated.

The question is whether the conduct was sufficiently serious that a hypothetical person of reasonable firmness present at the scene would fear for their personal safety.

3. The Required Mental Element

Section 93D of the Crimes Act 1900 (NSW) provides the mental element for affray.

A person is guilty of affray only if they:

• intend to use or threaten violence; or
• are aware that their conduct may be violent or may threaten violence.

The Prosecution must therefore establish the relevant mental element in addition to the physical conduct relied upon.

The "Reasonable Firmness" Test

The reasonable firmness test is an important part of an affray Prosecution.

The Prosecution does not need to prove that an actual uninvolved person witnessed the incident and was frightened.

Section 93C expressly provides that no person of reasonable firmness need actually be, or be likely to be, present at the scene.

The court instead considers whether the conduct would have caused a person of reasonable firmness present at the scene to fear for their personal safety.

This means that an affray charge may arise from conduct occurring in circumstances where there were no independent members of the public present.

Affray Involving Multiple People

Where two or more people use or threaten unlawful violence, section 93C provides that the conduct of those people taken together is considered.

This can be particularly important in cases involving:

• group fights;
• street fights;
• pub or nightclub incidents;
• disputes involving several people;
• public disturbances;
• confrontations between groups; and
• incidents where it is difficult to establish precisely what each participant did.

The Prosecution may therefore rely upon the overall conduct occurring during an incident rather than necessarily treating each person's conduct entirely in isolation.

Affray in Public and Private Places

Affray is not restricted to conduct occurring in public.

Section 93C expressly provides that affray may be committed in private as well as in public places.

Accordingly, an allegation may arise from conduct occurring at locations such as:

• streets;
• public transport locations;
• licensed premises;
• shopping centres;
• sporting venues;
• private homes;
• residential properties;
• workplaces; or
• other private or public locations.

The location of the incident does not, by itself, determine whether the offence has been committed.

Threats and Words Alone

Section 93C specifically provides that a threat cannot be made by the use of words alone.

This can be an important issue where the Prosecution case is based upon alleged threatening behaviour.

The defence may need to examine precisely what was said and, importantly, what physical conduct accompanied the alleged threat.

An argument involving angry or aggressive words does not automatically constitute affray.

The Prosecution must establish the statutory requirements concerning unlawful violence or a threat involving conduct, together with the reasonable firmness and mental element requirements.

What the Prosecution Must Prove

The Prosecution bears the burden of proving the charge beyond reasonable doubt.

Depending upon the circumstances of the allegation, the Prosecution must establish:

1. The accused used or threatened unlawful violence towards another person
   The Prosecution must establish the relevant act or conduct relied upon as constituting unlawful violence or a threat of unlawful violence.
2. The conduct was such that a person of reasonable firmness would fear for their personal safety
   The Prosecution must establish the objective reasonable-firmness test.
3. The required mental element was present
   The accused must have intended to use or threaten violence, or been aware that their conduct may be violent or threaten violence.
4. The accused was responsible for the alleged conduct
   Where identity is disputed, the Prosecution must establish beyond reasonable doubt that the accused was the person responsible.

If the Prosecution fails to establish an essential element beyond reasonable doubt, the accused person should be acquitted.

Defending Affray Charges

An affray allegation requires a detailed examination of the circumstances surrounding the incident.

Depending on the circumstances, possible defence issues may include:

• self-defence;
• defence of another person;
• the accused did not commit the alleged conduct;
• mistaken identity;
• the conduct was not unlawful;
• the Prosecution cannot establish the alleged threat;
• words alone were relied upon as the alleged threat;
• the conduct would not cause a person of reasonable firmness to fear for their personal safety;
• lack of the required mental element;
• challenging the Prosecution's interpretation of the incident;
• challenging witness evidence;
• challenging CCTV or video evidence;
• challenging identification evidence;
• inconsistencies between witnesses; or
• challenging the reliability or completeness of the Prosecution evidence.

The availability of a particular defence will depend upon the evidence and circumstances of the individual case.

Self-Defence in Affray Cases

Self-defence may be an important issue where the accused person alleges that they were responding to violence or an imminent threat of violence.

Depending upon the circumstances, the defence may involve evidence that the accused:

• was attacked first;
• was responding to an imminent threat;
• was protecting another person;
• was attempting to prevent further violence; or
• believed that their conduct was necessary in the circumstances as they perceived them.

Whether self-defence is available depends upon the particular circumstances and the applicable statutory requirements.

A detailed examination of CCTV footage, witness accounts, photographs, medical evidence and the sequence of events may be critical when assessing self-defence.

Evidence in Affray Cases

Affray Prosecutions can involve significant amounts of evidence.

The Prosecution may rely upon:

• CCTV footage;
• mobile phone recordings;
• photographs;
• police body-worn video;
• witness statements;
• eyewitness testimony;
• medical evidence;
• photographs of injuries;
• forensic evidence;
• admissions;
• telephone records; and
• evidence concerning the events immediately before and after the alleged incident.

The defence should carefully examine the entirety of the evidence rather than relying solely upon the Prosecution's description of the incident.

CCTV and Video Evidence

CCTV and mobile phone footage can be particularly important in affray matters.

Video evidence may assist in determining:

• who initiated the confrontation;
• who used violence;
• whether a threat was actually made;
• what conduct occurred immediately before the incident;
• whether the accused was acting defensively;
• the duration of the confrontation;
• the number of people involved; and
• whether the Prosecution's version accurately reflects what occurred.

Where video evidence exists, obtaining and reviewing the complete footage, rather than isolated clips, may be critical.

Penalties for Affray

Affray is a serious indictable offence under section 93C of the Crimes Act 1900 (NSW).

The maximum penalty is:

10 years' imprisonment

Affray is a Table 1 indictable offence, meaning it can generally be dealt with summarily in the Local Court unless the Prosecution or accused elects to have the matter dealt with on indictment.

Local Court Penalties

Where the matter is dealt with in the Local Court, the maximum penalty is:

2 years' imprisonment; or

100 penalty units; or

both, subject to the applicable statutory provisions.

The Local Court's maximum penalties for Table 1 offences are prescribed by section 267 of the Criminal Procedure Act 1986 (NSW).

The current NSW penalty unit is $110.

Accordingly:

100 penalty units × $110 = $11,000

The maximum Local Court penalty is therefore:

2 years' imprisonment and/or a fine of up to $11,000

The full statutory maximum of 10 years' imprisonment applies where the matter proceeds on indictment.

Sentencing for Affray

If a person is convicted of affray, or enters a plea of guilty, the court will consider the circumstances of both the offending and the offender when determining the appropriate sentence.

Factors may include:

• the seriousness of the violence;
• the nature of the conduct;
• whether weapons were involved;
• the number of people involved;
• whether injuries were caused;
• the extent of any injuries;
• whether the conduct was planned;
• whether the incident was spontaneous;
• the offender's role in the incident;
• the duration of the conduct;
• whether the offender was acting in response to another person's conduct;
• the offender's criminal history;
• their personal circumstances;
• their prospects of rehabilitation;
• their level of remorse;
• whether they entered an early plea of guilty; and
• any other relevant aggravating or mitigating circumstances.

Sentencing outcomes can vary significantly depending upon the particular facts of the matter.

A person charged with affray should not assume that a conviction will necessarily result in imprisonment. Effective sentencing advocacy can be important in presenting the circumstances of the offender and identifying the appropriate sentencing outcome.

Preparing Your Defence

Affray matters can involve competing accounts of what occurred and rapidly developing events involving multiple people.

At Chidiac & Associates, we assist clients by:

• analysing the Prosecution evidence;
• reviewing CCTV and video footage;
• examining witness statements;
• identifying inconsistencies in witness accounts;
• reconstructing the sequence of events;
• examining the circumstances leading to the confrontation;
• assessing potential self-defence arguments;
• challenging identification evidence;
• analysing the mental element required for affray;
• identifying weaknesses in the Prosecution case;
• preparing for contested hearings and trials; and
• presenting a clear and persuasive defence.

Our approach is built on meticulous preparation, strategic advice and strong courtroom advocacy.

How We Can Help With Affray Charges

At Chidiac & Associates, we understand the serious consequences that can arise from an affray allegation.

A charge may involve imprisonment, a substantial criminal record and significant consequences for a person's employment, professional opportunities and personal circumstances.

We can assist with:

• advice during police investigations;
• advice before participating in a police interview;
• bail applications;
• developing defence strategies;
• analysing CCTV and video evidence;
• reviewing witness evidence;
• investigating self-defence;
• negotiating with the Prosecution where appropriate;
• defending the charge in the Local Court;
• preparing matters for the District Court;
• trial representation;
• sentencing submissions; and
• appeals where appropriate.

Our approach is built on thorough preparation, strategic decision-making and persuasive courtroom advocacy.