Affray is a charge under section 93C of the Crimes Act 1900 that is regularly charged by the Police where there is a fight or a brawl between multiple people. Affray is a charge which carries a high maximum penalty, being 10 years imprisonment. Interestingly, this is compared to a charge of common assault which carries a maximum penalty of 2 years imprisonment and assault occasioning actual bodily harm which carries a maximum penalty of 5 years imprisonment.

Affray does not require the prosecution to prove that actual bodily harm was occasioned, which means that in theory, a person charged with affray could face a larger maximum penalty than a charge of assault occasioning actual bodily harm, even if no person suffered an injury during the melee.

Often, police mistakenly charge persons with affray when the more correct charge is common assault. This is a mistake that can lead to grave consequences if the defendant pleads guilty, as they are facing an additional 8 years of imprisonment as a maximum penalty. So, what is the difference?

Affray requires the prosecution to prove the following four (4) ‘elements’:

1. A person used, or threatened to use unlawful violence towards another person.
2. That person intended to use, or intended to threaten to use, violence.
3. The person’s actions would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
4. The person did so without lawful excuse.

When considering whether a defendant’s actions more accurately constitute common assault than affray, the third point above is most important (bolded).

Example

• If you think about a fight between three people, say two persons are focusing their aggression entirely on the third person (‘the victim’), and that aggression doesn’t extend beyond the victim, then it might be said that their actions would not cause ‘a person of reasonable firmness present at the scene to fear for his or her personal safety’, and as such, their actions are more an ‘assault’ on the victim, rather than an affray. This is because their aggression does not extend beyond the one victim.

• Alternatively, if a fight develops in which the three (3) people begin to push against one another and others around almost get hit in the process, it might be that their aggression extends beyond the victim, in which case it may fall into the category of an affray.

This question is one which is very regularly overlooked. If you are charged with affray, it is important that before pleading guilty, your case is carefully assessed by a lawyer to determine whether the charge is appropriate.

For more information on these charges, see our website pages on Affray and Common assault.

If you are unsure whether you should be pleading guilty or not guilty to a charge of affray, talk to one of our criminal law specialists on (02) 9025 9888.

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