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If media reports are to go by, offences involving violence is an all too regular occurrence, and if you are indeed a regular consumer of news stories involving violence, it’s possible that you have encountered the term, ‘affray’. Unlike other more familiar offences such as assault, affray is probably less well understood; however with that being said, the two offences usually are associated with one another. So, what exactly is affray?
Before exploring further the offence of affray, we should note that in most jurisdictions, the common law offence has been repealed and replaced by legislation, such as s 93C of the Crimes Act 1900 (NSW), which defines the offence of affray in the following manner:
“(1) 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 his or her personal safety is guilty of affray and liable to imprisonment for 10 years.
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3) For the purposes of this section, a threat cannot be made by the use of words alone.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Affray may be committed in private as well as in public places.”
Affray is generally a continuing offence that has the following elements:
For further clarification of the offence, we can turn to I v DPP  1 AC 285;  2 AII ER 583;  2 Cr App R 216 (HL), where Lord Hutton said:
“The offence of affray, both at common law and now under statute, was primarily intended to punish a person who engaged in a face-to-face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear. As Lord Bingham of Cornhill CJ said in R v Smith  1 Cr App R 14 at 17:
‘It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on.’
His Lordship later said:
‘[A] person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.”
Interestingly, a person acting in self-defence may not be guilty of affray, as was held in R v Honeysett (1987) 10 NSWLR 638; 34 A Crim R 277 (CCA):
“The issue of self-defence is not limited to situations in which an accused reasonably believes that he is threatened with death or serious bodily harm and is available where the act of the accused was one merely of assault, or where an assault is made the basis for a charge of affray.”
If you have been charged with Affray, you need to speak with an Affray Lawyer Sydney immediately 9261 8640