Being charged with affray can be a distressing experience, however understanding what the law says is important if you want to get the best outcome in your case.
Section 93C of the Crimes Act says that it is an offence to take part in an affray.
An affray is where you use or threaten to use unlawful violence towards another. The violent conduct must also be seen to cause an ordinary person to fear for their safety.
‘Unlawful violence’ means illegal and harmful conduct. It can include damage caused to property, injuries suffered by people, and any conduct that has the potential to cause damage or injury, such as throwing objects at other people. However, words alone won’t be enough to constitute ‘unlawful violence.’
If there are two or more people involved in the affray, the court will consider their conduct as a whole when determining whether ‘unlawful violence’ has been committed.
However, the law also says that you can only be charged with affray where you deliberately used violence, or where you were aware that your conduct could be violent.
This means that if you can prove that your actions were accidental, or that they were not supposed to result in violence, you may be found ‘not guilty.’
An affray can be committed in a public or a private place, which means that you can be charged with this offence even if you are on private property, such as a bar or nightclub.
If you’re worried about how an affray charge could affect you, it’s best to get in touch with an experienced criminal lawyer.
The Legislation
Sections 93C and D of the Crimes Act deal with ‘affray’ and read as follows:
93C Affray
(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.
93D Mental element under sections 93B and 93C
(1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.
(2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
(3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.
Why Choose Sydney Criminal Lawyers®?
Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with. Here are 12 reasons to choose our multi-award winning legal team:
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Proven Track Record of Exceptional Results
Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.
Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.
Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.
We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.
Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.
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Highest Level of Client Satisfaction
We have the best and most comprehensive client review record of any law firm in Australia.
Regular communication, accessibility and quality service are our team’s highest priorities.
We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.
We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.
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Australia’s Most Awarded Criminal Law Firm
We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.
The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.
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Fixed Fees
We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.
We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.
Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.
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Free First Appointment
For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.
We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.
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Specialist Lawyer Guarantee
We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.
This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.
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All NSW Courts
From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.
And we offer fixed fees for most criminal and traffic law cases throughout the state.
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Accredited Specialists
Our entire firm is exclusively dedicated to criminal law – which makes us true specialists. All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.
An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.
Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.
Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.
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Results-Focused Law Firm
Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.
The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.
Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.
No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.
The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.
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Team of Lawyers Behind You
Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.
Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.
A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.
In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.
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Familiar with Magistrates and Judges
Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.
Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.
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Convenience
We have offices in locations across the Sydney Metropolitan Area and beyond, including:
- the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
- Liverpool, directly opposite Liverpool Local Court, and
- Parramatta, near the justice precinct.
We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.
For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.
If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.
Recent Cases
Not Guilty of Affray and Assault Occasioning Actual Bodily Harm in Company
Our client is a 26 year old university student from Western Sydney.
He was charged together with two other men in relation to a brawl between two groups of men outside a hotel in the Sydney CBD, during which a man was ‘bottled’ in the face causing significant injuries.
Our client was accused of being the person who committed the ‘bottling’, and was charged with Affray and Assault Occasioning Actual Bodily Harm (AOABH) in company.
Affray carries a maximum penalty of 10 years in prison while AOABH in company comes with a maximum of seven years.
Surveillance footage captured several men punching and kicking one another, and an independent witness identified our client as the person who used the bottle.
Our client could indeed be seen in the footage partaking in the melee, but the use of a bottle was not captured.
Our client’s instructions were that his actions were undertaken in self-defence and he did not use a bottle at any time.
The two other men who were charged pleaded guilty to both Affray and AOABH, and were sentenced accordingly. They were represented by two other specialist criminal defence law firms.
One of our defence team’s primary tasks was to ensure our client’s case was kept in the Local Court rather than being referred to the District Court, as the maximum sentence that can be applied to each charge in the Local Court is two years in prison.
We successfully persuaded the DPP to do this.
Having carefully scrutinised the CCTV footage and identified several inconsistencies in and between the statements of the prosecution witnesses – comprising the independent witness and the other men involved in the altercation – we advised our client to maintain his plea of not guilty and defence both charges.
The case eventually reached a defended hearing during which we stressed the inconsistencies within and between the statements, as well as procedural flaws in the identification process, and successfully raised the issue of self-defence.
Our cross-examination systematically dismantled the prosecution case, and as the prosecution was unable to ‘negative’ the possibility that our client acted in self-defence, the presiding magistrate found our client not guilty of both charges.
Our Client Found Not Guilty of Affray, after All Co-Accused Plead Guilty
Our client is a 20 year old sales representative.
He and 7 other men were charged with Affray after a highly-publicised ‘brawl’ between two groups in the lobby of the Meriton Apartments in Sydney.
Affray carries a maximum penalty of ten years imprisonment when tried in the District Court, or two years in the Local Court.
CCTV captured the men (including our client) attacking, punching and kicking each other, and an 8kg pot plant being hurled by one of the men and hitting another in the head, causing severe injuries amounting to grievous bodily harm.
A number of the men fled after the incident and could not be identified.
Our client was apprehended by police near the scene.
He could be seen on CCTV throwing punches on two separate occasions.
His instructions were that, although involved, he was acting in defence of his friends, who were being attacked by the other group.
This is sometimes known as ‘third party self-defence’.
There were several eye-witnesses who gave statements to the effect that the groups attacked one-another, were equally ‘at fault’ and that the participants appeared to be engaging in a planned fight.
Our client and a number of the other co-accused saw a criminal law firm who advised them that there were no prospects of defending the case.
All 7 of the co-accused pleaded guilty to Affray and/or assault charges, despite there being less evidence against a number of them than that which was available against our client.
Our client sought a second opinion from our firm.
After taking the time to carefully scrutinise the footage and witness statements, receiving detailed instructions regarding the footage and attending the scene to gain a complete understanding of our instructions, it became clear there was a reasonable possibility that our client indeed acted in third party self-defence – which is a complete defence to the charge of Affray.
At the hearing, we systematically dismantled the prosecution case by highlighting material inconsistencies between, and deficiencies within, the prosecution statements and eliciting evidence from our client in purview of the footage to the effect that he was acting in response to attacks upon his friends by members of the other group.
After receiving this evidence and hearing closing submissions, His Honour came to the view that the prosecution had failed to negative the possibility of self-defence beyond reasonable doubt.
He therefore found our client not guilty of the charge.
Not Guilty of Affray and Common Assault
The Magistrate has found our 27 year old client 'not guilty' of Affray and Common Assault after a full-day hearing in Downing Centre Local Court.
Our client is a serving officer of the Australian Defence Force and was a member of the Special Forces when he attended the Fox Hole Hotel, Sydney with his brother on a Saturday night and consumed several alcoholic drinks.
The pair later left the Hotel and attempted to gain entry into The Office Hotel, but were refused.
It is alleged that our client then told the Security Officer to 'fuck off' and pushed him in the chest, causing him to step backwards. The Security Officer allegedly said 'go back across the road where you came from'.
It is alleged that the pair then got into a fight with a number of other males, during which our client punched one of the males in the temple causing him to fall to the ground and lose consciousness.
Our client was identified as the assailant by three people - the alleged victim, the Hotel Manager and a Security officer. All gave statements to police and identified our client from CCTV footage and photoboards.
Arresting police then made a telephone call to the Australian Defence Force, which resulted in our client being demoted.
All prosecution witnesses attended court hearing and gave evidence that they were certain our client was responsible.
However, through careful analysis of additional CCTV footage and thorough preparation our defence team was able to persuade the Magistrate that the prosecution could not rebut the possibility that our client was acting in reasonable defence of his brother; which is called 'third party self-defence'.
All charges were therefore dismissed and our client will now be seeking reinstatement to the Special Forces.
All Four Defendants Not Guilty of Assaulting Police at The Rocks
Sydney Criminal Lawyers® secured 'not guilty' verdicts in Downing Centre Local Court for four clients charged with 'affray' and 'assault occasioning actual bodily harm' against two off-duty police officers.
The officers, who had been drinking alcohol, saw one of our clients letting down a police car tyre at The Rocks, Sydney. One of the officers then walked-up and kicked our client to the buttocks. The officers claim to have announced that they were police officers and were placing our client under arrest. Our clients then beat-up both of the officers, causing significant injuries and hospitalisation. The hearing ran for 5 days and the prosecution tried to argue that:- the officers were acting in execution of their duty, despite being off-duty and
- our clients did not act in self-defence.
Finding of 'Self Defence' for Night Club Patron
Charges of 'Affray', 'Assault Occasioning Actual Bodily Harm' and 'Common Assault' were dismissed against a 27 year old night club patron who repeatedly punched a security officer, after the Court found that he may have acted in 'self defence'.
The security officer sustained a broken nose and bruised eye during the incident, but the prosecution could not disprove the defence argument that the patron was defending himself against the guard's aggression.