Before it was introduced into the New South Wales Crimes Act in 1988, it was a common law offence. However, the common law offence of affray seemed insufficient to deal with different sorts of violence, which was in fact the reason behind giving it a statutory recognition.
Affray occurs when a person 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 (Section 93C Crimes Act of 1988).
It is an indictable offense and dealt with by the local court unless the accused opts to be under the jurisdiction of the district court. A person found guilty of affray may be punished with 10 years imprisonment (maximum).
However, when the offense committed is not serious, he may be alternatively dealt with by intensive correction order, good behaviour bond (for 12 months if under the local court or 18 months maximum if imposed by the district court), periodic detention, suspended sentence, community service order without a criminal record under Section 10. In some cases, a fine is also imposed.
Affray is committed by two or more persons. The conduct of the persons involved is taken together for the purpose of ascertaining whether an affray is committed (Subsection 2 of 93C). There is a need to prove that the person/s alleged of affray used violence or threatened violence towards another person.
Use of words alone will not be sufficient to be considered as affray. There should be some overt physical act of using or threatening to use unlawful violence towards another. Section 93A describes what the term “violence” means in this context. It means any violent conduct, but does not include violence towards property.
It is not necessary to show that the violence used or threatened resulted in injury or damage. For instance, throwing a grenade at a person will be considered violence, even if the grenade does not explode or falls short.
The offence of affray can be committed both in private and public places. Certain defences are available to a person charged with affray. Defence of necessity as a person acted in self-defence or when the person is under duress are the most common defences. In such instances, the criminal liability of the person involved may be reduced or avoided.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.