What is Affray
Affray is a conduct, that can occur both in public or private places, which consists of threatening and violent behaviour. It can be committed by an individual or a group of people. It is a criminal offence that has at its core anti-social manners which are aggressive and would invoke an innocent bystander present at the scene to fear for his or her personal safety.
Affray & The Law
Under section 93C(5) of the Crimes Act 1900 (NSW), a person may be guilty of affray if the unlawful behaviour occurs in public or in private.
Common Examples of Affray
Fighting between 2 or more people on the street or within an established venue
Threatening to assault another (The threat cannot be made by the use of words alone)
Inciting and participating in violent public demonstrations
What the Prosecution need to Prove (Beyond a Reasonable Doubt):
That the accused was involved in the use of force; and
That the force was unlawful; and
The behaviour occurred in circumstances where a bystander of reasonable firmness present at the scene would have feared for their personal safety.
The Prosecution however, does not need to prove that the bystander was present at the scene when the incident occurred. It will be sufficient that the Police Evidence would show that had an innocent person been present at the scene, that person would have been afraid.
In order for the Court to make a finding of Guilty, the Prosecution needs to prove each of the above elements beyond a reasonable doubt.
Going to Court – “What am I looking at?”
If you have been charged with Affray, you will have to go to Court, and the seriousness of the incident will determine in which Court the matter will be heard. A large number of incidents of Affray are dealt with in the Local Court before a Magistrate, with more aggravated cases of violence, attracting further charges, being more likely to be referred to higher courts. The charge carries a maximum penalty of 2 years imprisonment in the Local Court jurisdiction, and up to 10 years imprisonment in higher courts.
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