Affray is an offence under section 93C of the Crimes Act 1900 (NSW) (the Act). In general terms, the offence of affray may be made out when a person uses or threatens to use unlawful violence towards another person which in turn causes a person of reasonable firmness to fear for his or her safety due to the use or threat of unlawful violence. A key ingredient of this offence is the need for a person of reasonable firmness to fear for his or her welfare due to the use or threat of use of violence by the defendant on the other person. Our Affray Lawyers and Criminal Lawyers have a range of experiences in advising on affray offences.
Elements of the offence
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:
- A person uses or threatens to use unlawful violence towards another person; and
- 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.
A person of reasonable firmness
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.
Speak to one of our specialist Affray Lawyers today – the first consultation is free. Get the help you need from our highly qualified Criminal Lawyers.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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