What Is Affray In NSW?

Historically, affray was a common law offence which was abolished by legislation enacted in 1988 in NSW which created the current statutory offence of affray. In this blog, Blacktown Criminal Lawyers | AMA Legal explore the elements of the offence, the Courts before which the offence is prosecuted and examine recent sentence statistics for the offence.  

Affray in NSW 

The offence of affray is contained in section 93C Crimes Act 1900 (NSW) and the mental element for the offence of affray is contained in section 93D (2) Crimes Act 1900 (NSW).

Elements of Affray

The prosecution for an affray offence must prove, beyond a reasonable doubt, the following: 

1. The accused used unlawful violence or threatened unlawful violence towards another, and 
2. The accused did so with an intention to use unlawful violence or intention to threaten unlawful violence, or was aware that his/her conduct may be violent or threaten violence, and 
3. The conduct was such that would cause a person of reasonable firmness present at the scene to fear for their personal safety. 

It should be noted that no person of reasonable firmness of mind need to be present during the alleged offending and affray can be committed both in public and private. 

The Court 

Affray is an indictable offence which is usually prosecuted summarily at the NSW Local Courts unless the Director of Public Prosecutions elect to have the matter prosecuted on indictment at the District Courts of NSW. The maximum penalty for affray is 10 years imprisonment which is limited to 2 years at the Local Court due to the Local Court’s jurisdictional limit. There is no sentence limit if the offence is prosecuted at the District Courts of NSW. 

Statistics

According to data accessed by Blacktown Criminal Lawyers | AMA Legal from NSW Bureau of Crime Statistics and Research, between July 2022 and June 2023 a total of 2,795 riot and affray charges were finalised at the NSW Local Courts with 1,728 of the charges proven equating to 59.7 percent. 

JIRS data accessed by Criminal Lawyers Blacktown | AMA Legal show that between October 2019 to September 2023, the NSW Local Court sentenced offenders on  5,325 charges of affray with the outcomes being: 

Penalty Type	Total	Percentage %
Section 10(1)(a) Dismissal	56	1.1
Section 10(1)(c) Discharge	0	0
Conditional Release Order without Conviction	795	14.9
Section 10A – Conviction with no other Penalty	20	0.4
Fine Only	739	13.9
Conditional Release Order with Conviction	258	4.8
Community Correction Order	2,222	41.7
Intensive Correction Order	630	11.8
Imprisonment	605	11.4
Total	5,325	100

Affray is a public order offence which is treated as a serious offence which can be seen by the maximum penalty of 10 years imprisonment and when considering that 23.2% resulted in custodial sentences being imposed by the Local Courts of NSW. If you find yourself facing an affray charge, searching for a criminal lawyer near me is the first step towards securing the expertise needed to protect your rights.