Affray Charges
Clear advice on penalties, defences and what to expect after an affray charge.
Affray is created by section 93C of the Crimes Act 1900 (NSW) and is committed where a person uses or threatens unlawful violence towards another, and their conduct is such that it would cause a person of reasonable firmness present at the scene to fear for their personal safety. Unlike common assault, affray focuses on the public and threatening character of the conduct rather than any specific victim, and it is frequently charged in relation to brawls, group confrontations and violent disturbances in public places such as licensed venues, streets and car parks.
Affray is an indictable offence, meaning it can be dealt with either in the Local Court or, for more serious examples, escalate to the District Court, and it carries a considerably higher maximum penalty than common assault. Because more than one person is often involved in the conduct giving rise to an affray charge, prosecutions can turn heavily on CCTV and witness accounts to establish exactly what each individual did, as liability depends on a person’s own conduct and role in the incident rather than simply being present.
A key feature of affray is that no one needs to actually have been injured, or even to have been present and afraid, for the offence to be made out — the test is whether the conduct, viewed objectively, would have caused a hypothetical person of reasonable firmness to fear for their safety. This makes the specific footage and eyewitness evidence of the incident, and the individual accused’s precise actions within it, central to how these matters are defended.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Affray (s93C Crimes Act 1900) — dealt with summarily | 2 years imprisonment and/or a fine of 50 penalty units | Where the Local Court retains jurisdiction and deals with the matter summarily, this reduced maximum applies rather than the full indictable maximum available in the District Court. |
| Affray (s93C Crimes Act 1900) — indictable, District Court | 10 years imprisonment | Applies where the matter is dealt with on indictment, typically reserved for more serious examples involving weapons, significant group violence, or serious injury to bystanders. |
| Aggravating factors | Sentence increased within the applicable maximum | The use of a weapon, the involvement of multiple offenders acting together, the location (such as a busy public place), and any injury caused to bystanders are all treated as aggravating features at sentencing. |
Possible Defences
Ways this charge can be challenged
No threat to a person of reasonable firmness
The offence requires that the conduct in question would cause a hypothetical person of reasonable firmness present at the scene to fear for their safety. Where the conduct was limited, brief, or not objectively threatening in that sense — for example, a heated verbal argument without any real violence — this element may not be established.
Self-defence
Where a person’s use or threat of violence was a reasonable response to a threat they genuinely believed they or another person faced, self-defence can apply to an affray charge in the same way it applies to assault. This is particularly relevant in group confrontations where an accused person acted only to protect themselves or another from an initial aggressor.
Mere presence without participation
Being present at, or in the vicinity of, an affray is not itself an offence. The prosecution must prove that the specific accused person used or threatened unlawful violence themselves — someone who was nearby, uninvolved, or merely a bystander cannot be convicted simply for having been at the scene when the incident occurred.
What Happens Next
The Local Court process
- 01
Following an incident, police typically gather CCTV, witness statements and any medical evidence before deciding whether to charge a person with affray by way of arrest or a court attendance notice.
- 02
The matter is first listed for mention. Because affray is an indictable offence, this stage also involves a decision about whether it will proceed in the Local Court summarily or be committed to the District Court, depending on its seriousness.
- 03
Where the matter proceeds summarily, a plea of guilty or not guilty is entered in the Local Court in the usual way, and a not guilty plea leads to a defended hearing before a Magistrate.
- 04
Where the matter is committed to the District Court, it proceeds through committal, an arraignment, and either a trial before a judge and jury (if pleading not guilty) or a sentencing hearing before a judge alone (if pleading guilty).
- 05
At any hearing or trial, the prosecution must prove beyond reasonable doubt that the accused personally used or threatened unlawful violence and that the conduct met the objective threshold under section 93C, and the defence can challenge the CCTV, witness identification and any available defence such as self-defence.
- 06
If convicted, or on a guilty plea, sentencing follows, with the court considering the accused’s specific role in the incident, any injury caused, prior record and personal circumstances before determining the penalty.
Frequently Asked Questions
Common questions
Yes. Affray does not require proof that anyone was injured, or even that any bystander was actually present and afraid — the test is whether the conduct, viewed objectively, would have caused a person of reasonable firmness to fear for their safety. This is a key difference from assault offences that require an actual victim.
Affray can be dealt with summarily in the Local Court, which caps the maximum penalty at 2 years, or it can proceed on indictment in the District Court, where up to 10 years imprisonment is available. The decision depends on the seriousness of the conduct and is made with input from both the prosecution and the defence.
No. Mere presence at the scene of an affray is not enough — the prosecution must prove that you personally used or threatened unlawful violence. Being a bystander, or being present without participating, is not sufficient on its own to establish the offence.
Yes, self-defence is available to an affray charge where a person’s conduct was a reasonable response to a threat they genuinely believed existed. In group confrontations, this often requires a careful look at exactly what each person did and in what order events occurred.
CCTV and other video evidence is often central to affray prosecutions, as it can show precisely what each individual did during a chaotic incident. Where footage is unclear, incomplete, or shows conduct consistent with self-defence rather than initiating violence, this can significantly affect how the charge is defended.
Each accused person’s liability depends on their own specific conduct, not on what the group as a whole did. It is common for co-accused in the same incident to receive different outcomes depending on their individual role, the evidence against them, and any defences personally available to them.
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