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Charged with Affray? What You Need to Know
Being charged with affray in Burwood is more serious than many people realise. Affray under section 93C of the Crimes Act 1900 (NSW) carries a maximum of 10 years imprisonment in the District Court and 2 years in the Local Court.
It is treated as a public order offence, meaning the law is concerned not only with the physical conduct between the parties involved but also with the impact on members of the public who witness or might witness the violence. These types of criminal offences can have lasting consequences on your record and future.
A pub fight, a road rage incident, a brawl outside a venue, or aggressive conduct caught on CCTV can all lead to an affray charge. The good news: affray charges are frequently overcharged by police, and outcomes vary widely. Many affray matters are downgraded to common assault, dismissed altogether, or resolved without a recorded conviction.
The Australian Legal Practice is a team of experienced affray lawyers Burwood representing clients across Burwood, Sydney CBD, and Parramatta, Blacktown, and Liverpool. Our lawyers are available 24/7, the first consultation is free, and we routinely negotiate affray charges down to less serious offences or have them withdrawn entirely.
We also advise on related matters, including AVO, domestic violence allegations, and other complex criminal offences.
Call (02) 8084 9929 to arrange a free consultation with a principal affray lawyer.
What Is Affray?
Affray is a public order offence under NSW criminal law. Unlike common assault, which focuses on the conduct between the offender and a victim, affray focuses on the impact of violent conduct on bystanders or hypothetical members of the public. Similar to other offences such as drug, traffic, or driving matters, the legal definition is strict and highly fact-dependent.
In plain terms, affray occurs where a person:
- Uses or threatens unlawful violence towards another person, and
- Does so in a way that would cause a “person of reasonable firmness” present at the scene to fear for their personal safety
The “person of reasonable firmness” is a hypothetical ordinary bystander, not a particularly courageous or fearful person. They do not actually need to be present at the scene. The law asks whether such a person, if they were there, would have feared for their safety.
Key features of an affray charge:
- Affray can occur in public or private places (such as a home, pub, or workplace), including domestic settings
- The offence can be committed by one person or by two or more persons acting together
- Where multiple people are involved, the conduct of all of them is considered together
- A threat cannot be made by words alone. There must be some physical act, such as raising a fist, throwing an object, or producing a weapon
- Throwing objects can amount to unlawful violence for affray purposes, even if the object does not hit anyone
The clearest distinction from common assault is this: affray is concerned with indiscriminate violence that disturbs public order, while common assault is concerned with violence directed at a specific person. Police often charge affray where common assault would be the more accurate charge, particularly in pub or street altercations between two parties.
Affray Under Australian Law
The offence of affray is contained in section 93C of the Crimes Act 1900 (NSW). The full provisions are:
- Section 93C(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 their personal safety, is guilty of affray and liable to imprisonment for 10 years
- Section 93C(2): If 2 or more persons use or threaten the unlawful violence, the conduct of all of them taken together is considered
- Section 93C(3): A threat cannot be made by the use of words alone
- Section 93C(4): No person of reasonable firmness need actually be, or be likely to be, present at the scene
- Section 93C(5): Affray may be committed in private as well as in public places
Affray is a Table 1 offence under the Criminal Procedure Act 1986 (NSW). This means it is generally finalised in the Local Court but can be elected to the District Court by the prosecution or the accused. The maximum penalty depends on which court hears the matter.
These provisions apply alongside other criminal offences including fraud, sexual offences, and drink driving charges, which may arise in related circumstances.
What Must the Prosecution Prove?
To secure a conviction for affray, the prosecution must prove each element beyond reasonable doubt. If any element cannot be proven, the court must find you not guilty. Understanding your rights at each step of the legal process is critical.
The elements are:
- You used or threatened unlawful violence towards another person. Words alone are not enough. There must be a physical act, gesture, or visible weapon
- Your conduct was such that it would cause a person of reasonable firmness present at the scene to fear for their personal safety. The standard is an ordinary, average bystander — not one who is unusually courageous or unusually fearful
- You acted intentionally or recklessly. The prosecution does not need to prove you intended the violence; recklessness is enough
The prosecution does not need to prove that any particular person actually feared for their safety, or even that anyone was present. The test is hypothetical: would a person of reasonable firmness, if they had been there, have feared for their safety?
This is also a strong reason why early legal advice matters. The “reasonable firmness” element is highly fact-dependent. Where the conduct was limited to two parties in a controlled setting, the prosecution may struggle to prove this element, and the charge may be open to being downgraded or withdrawn. Early review of the evidence by experienced lawyers can significantly impact the outcome of your matter.
Penalties for Affray in NSW
The penalty for affray depends heavily on the circumstances of the offence and the court in which it is heard. Penalties can vary significantly depending on the seriousness of the matter, similar to other criminal offences such as drug, traffic, or drink driving cases.
Court | Maximum Penalty |
Local Court | 2 years imprisonment and/or 50 penalty units ($5,500 fine) |
District Court | 10 years imprisonment |
The maximum is reserved for the most serious cases, typically involving large-scale brawls, weapons, serious injury, or a clear public element.
Sentencing options available to the court:
- Section 10 dismissal (no conviction recorded)
- Conditional Release Order (CRO) with or without conviction
- Fine
- Community Correction Order (CCO)
- Intensive Correction Order (ICO), served in the community with strict conditions
- Full-time imprisonment
Factors that influence the severity of the penalty:
- Whether the conduct occurred in a public place and the level of disturbance to the public
- Number of people involved, and whether the offence was committed in company
- Whether weapons were used or displayed
- Whether anyone was injured, and the seriousness of any injury
- Whether the conduct was prolonged or a brief, isolated incident
- Whether alcohol or drugs were a factor (and any rehabilitation steps taken)
- Your prior criminal record
- Early plea of guilty and genuine remorse
For first-time offenders, less serious matters often resolve with a Section 10 dismissal or a CRO without conviction. Serious affray involving group violence, weapons, or significant public disturbance is far more likely to attract a custodial sentence.
Possible Defences Against Affray
Several defences can result in an affray charge being dismissed, withdrawn, or reduced. Each is assessed on the specific facts of the case. A careful review of the evidence is essential at every step.
- No unlawful violence used or threatened. The conduct was verbal only, or did not involve any physical act capable of constituting violence. Words alone are not enough under s 93C(3)
- A person of reasonable firmness would not have feared for their safety. The conduct, while perhaps inappropriate, did not reach the threshold required to instil fear in an ordinary bystander. This is a common ground for downgrading affray to common assault
- Self-defence (section 418 Crimes Act 1900): The conduct was a reasonable response to a perceived threat to yourself or another person. Self-defence is available for affray (confirmed in R v Honeysett (1987))
- Duress: You were forced to act by threats of serious harm from another person
- Necessity: The conduct was necessary to avoid imminent and greater harm, such as escaping a threatening situation
- Mistaken identity: You were not the person who engaged in the alleged conduct, particularly relevant in group incidents where police rely on later identification
- Lack of intent or recklessness: The conduct was accidental and you did not foresee the possibility of causing fear
- The conduct was between private parties only: Where the violence was confined between two people in a controlled setting with no public element, the affray charge may not be made out, even if a less serious offence such as common assault could be proven
The viability of each defence depends on the available evidence, including CCTV, witness statements, and the police fact sheet. A strong defence requires expert assessment and early preparation.
These defences may also overlap with other offences, including AVO, domestic, or even fraud and sexual allegations depending on the broader matter.
Your Options When Charged with Affray
When you are charged with affray, you face strategic decisions that shape the outcome. The right path depends on the strength of the prosecution case and your personal circumstances.
- Negotiate with the prosecution. Affray is one of the most commonly downgraded charges. Strong early submissions can lead to the charge being withdrawn entirely, downgraded to common assault under section 61 (which carries 2 years rather than 10), or to amendments to the agreed facts that significantly reduce the seriousness for sentencing
- Plead not guilty and defend the charge. Where the prosecution cannot prove that a person of reasonable firmness would have feared for their safety, or where self-defence applies, contesting the charge is often the right approach. Local Court matters are heard by a Judge; District Court affray matters are heard by a Judge and jury
- Plead guilty and seek the best sentencing outcome. Where guilt is clear or evidence is overwhelming, an early plea attracts a sentencing discount. Strong mitigation material, character references, and rehabilitation evidence (especially where alcohol or drugs were involved) can support a Section 10 dismissal or CRO without conviction
The right choice is a strategic decision. Pleading guilty without legal advice is particularly risky for affray because the charge is so often overcharged and ripe for downgrading. Each step in the process should be guided by experienced lawyers to protect your rights and achieve the best possible outcome for your matter.
Why Choose The Australian Legal Practice for Affray Charges
- Principal-level representation. You deal directly with an experienced senior affray lawyer Burwood, not a junior or a call centre
- 24/7 availability on (02) 8084 9929. Affray arrests typically follow incidents at venues, parties, or public places and require immediate response
- Three Sydney offices: Burwood (next to Burwood Local Court), Sydney CBD (Chifley Tower), and Parramatta (next to Parramatta Local Court)
- Free initial consultation so you can assess your defence options before your first court date
- Fixed-fee arrangements available for standard affray matters
- Strong record representing clients across a wide range of criminal offences, including drug, traffic, driving, and domestic matters
- Trial advocacy experience in District Court for serious affray matters involving group violence or weapons
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Frequently Asked Questions About Affray Charges
Affray under section 93C of the Crimes Act 1900 (NSW) is a public order offence focused on the impact of violent conduct on bystanders. Common assault under section 61 is focused on conduct between the offender and a specific victim. Affray carries up to 10 years imprisonment in the District Court, while common assault carries 2 years.
Yes. Under section 93C(4), no person of reasonable firmness needs to actually be present at the scene. The test is hypothetical: would an ordinary bystander, if they had been there, have feared for their safety? This means you can be charged with affray even from CCTV footage of an empty area.
Yes. Section 93C(5) expressly states that affray may be committed in private as well as in public. A fight in a private home, a workplace, or a private function venue can all attract an affray charge.
No. Section 93C(3) is clear that a threat cannot be made by words alone. There must be some accompanying physical act, gesture, or visible weapon. This is one of the most common grounds for challenging an affray charge.
Many affray matters resolve without full-time imprisonment, particularly for first-time offenders with no injury caused and limited public disturbance. Section 10 dismissals, CROs, CCOs, and ICOs are all available. Serious affray involving group violence, weapons, or significant injury is far more likely to result in a custodial sentence.
