UNDERSTANDING THE OFFENCE OF AFFRAY IN NSW

on August 11, 2025

Affray is a criminal offence in New South Wales (NSW) that involves violent or threatening behaviour in a public place, often leading to charges in group altercations or public disturbances. This offence can result in substantial penalties, including imprisonment and a criminal record, affecting employment, travel, and reputation. Understanding affray is crucial for anyone facing or witnessing such incidents, as it highlights the importance of legal representation to mitigate consequences. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we specialise in criminal law and traffic law, providing expert legal representation to defend clients against affray and related charges. As leading Sydney criminal Defence lawyers and traffic law specialists, we are committed to protecting your rights and achieving the best possible outcome in NSW courts.

In this comprehensive guide, we explore everything you need to know about the offence of affray in NSW, including its legal definition, penalties, defences, and how a lawyer can help mitigate or dismiss charges. Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship

For legal advice, contact us at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au.

What Is Affray in NSW?

Affray is an offence under section 93C of the Crimes Act 1900 (NSW), defined as the use or threat of unlawful violence by one or more persons towards another, where the conduct would cause a person of reasonable firmness present at the scene to fear for their personal safety. Unlike assault, affray does not require physical contact or direct harm; it focuses on the public disturbance caused by violent or threatening behaviour. The offence is intended to maintain public order and safety, particularly in situations involving group violence or brawls.

To secure a conviction for affray, the prosecution must prove beyond a reasonable doubt:

  1. Unlawful Violence or Threat: The defendant used or threatened unlawful violence (e.g., punching, kicking, or brandishing a weapon).
  2. Public Fear: The conduct would cause a hypothetical person of reasonable firmness at the scene to fear for their safety.
  3. Participation: The defendant was involved as an active participant, not merely a bystander.
  4. Intent or Recklessness: The defendant intended to cause fear or was reckless about the potential for violence.
  5. Public Place: The incident occurred in a public or semi-public location, such as a street, bar, or park.

Affray cases are typically prosecuted as indictable offences in the District Court, though minor cases may be dealt with summarily in the Local Court (e.g., Parramatta, Liverpool, or Campbelltown). The offence can involve multiple defendants and is often charged in public disorder incidents.

Examples of Affray

  • Group Brawls: Participating in a fight between rival groups in a public park, causing onlookers to fear for their safety.
  • Bar Fights: Throwing punches or chairs in a pub altercation, creating a threatening environment for patrons.
  • Street Altercations: Engaging in violent behaviour during a road rage incident or protest that escalates into a disturbance.
  • Domestic Disputes in Public: A family argument in a shopping centre turning violent, alarming bystanders.
  • Sporting Events: Fighting with opposing fans at a stadium, causing fear among spectators.

Related Offences

Affray is often charged alongside or instead of related offences under the Crimes Act 1900:

  • Riot (section 93B): Similar to affray but involving 12 or more people, with up to 15 years imprisonment.
  • Violent Disorder (section 93A): Involving three or more people using violence, with up to 10 years imprisonment.
  • Common Assault (section 61): Assault without injury, with up to 2 years imprisonment.
  • Public Order Offences (section 4, Summary Offences Act 1988): Offensive conduct in public, with fines up to $660.
  • Intimidation (section 13, Crimes (Domestic and Personal Violence) Act 2007): Causing fear through threats, with up to 5 years imprisonment.

Penalties for Affray in NSW

The penalties for affray reflect the offence’s potential to disrupt public order and endanger safety. Under section 93C of the Crimes Act 1900, the penalties are:

  • Maximum Penalty:
    • Imprisonment: Up to 10 years.
    • Standard Non-Parole Period: 5 years, as per section 54A, Crimes (Sentencing Procedure) Act 1999, serving as a sentencing guide in the District Court.
  • District Court: As an indictable offence, the full 10-year penalty applies, often with a non-parole period for custodial sentences.
  • Local Court: If dealt with summarily (e.g., minor affray), up to 2 years imprisonment and/or a $5,500 fine under section 268 of the Criminal Procedure Act 1986.
  • Non-Conviction Outcomes: For minor cases or first-time offenders, courts may impose a section 10(1)(a) dismissal or Conditional Release Order (CRO) under the Crimes (Sentencing Procedure) Act 1999, avoiding a conviction.

Additional Consequences

A conviction for affray can lead to:

  • Criminal Record: Remains on your National Police Certificate for 10 years (or 3 years for juveniles) unless spent under the Criminal Records Act 1991.
  • Employment: A criminal record can hinder job prospects, particularly in roles requiring background checks (e.g., security, education, or government).
  • Travel: Countries like the USA and Canada may deny entry for public disorder convictions.
  • Reputation: A conviction can damage personal and professional relationships, especially if the incident was public or media-reported.
  • Apprehended Violence Orders (AVOs): An Apprehended Personal Violence Order (APVO) may be imposed, restricting contact with involved parties.
  • Civil Liability: Victims or affected parties may seek compensation for emotional distress through civil proceedings.

Sentencing Considerations

Under section 21A of the Crimes (Sentencing Procedure) Act 1999, courts consider:

  • Aggravating Factors: Use of a weapon, premeditation, offence committed in a public place, or targeting a vulnerable victim.
  • Mitigating Factors: First-time offender, genuine remorse, cooperation with police, or minimal harm.
  • Example: A first-time offender in a minor scuffle may receive a section 10 dismissal, while a repeat offender in a violent brawl could face imprisonment.

How a Sydney Criminal Lawyer Fights an Affray Charge

A Sydney criminal defence lawyer employs a range of strategies to defend against an affray charge, from challenging the prosecution’s evidence to negotiating outcomes. Below are the key approaches used by Nicopoulos Sabbagh Lawyers:

1. Analysing the Prosecution’s Evidence

The prosecution must prove public fear and unlawful violence. A lawyer will scrutinise:

  • CCTV Footage: Review footage to confirm the violence’s nature or lack of public fear.
  • Witness Statements: Cross-examine bystanders to expose inconsistencies or confirm no reasonable fear was caused.
  • Police Reports: Identify procedural errors, such as failure to provide a caution (section 122, Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)).
  • Public Fear Element: Argue that no “person of reasonable firmness” would fear for their safety, based on the incident’s context.

Example: If footage shows the incident was private and did not cause public alarm, a lawyer can seek a dismissal.

2. Challenging the Public Fear Element

A lawyer can argue:

  • The conduct did not cause reasonable fear (e.g., a verbal argument without violence).
  • No public was present, or the fear was not reasonable given the circumstances.

Example: If the incident occurred in a private area with no bystanders, a lawyer can argue it does not meet the affray threshold.

3. Raising Legal Defences

Several defences can be raised:

  • Self-Defence: You acted to protect yourself or others from unlawful harm (section 418, Crimes Act 1900).
  • Lack of Unlawful Violence: The conduct was not violent or threatening (e.g., a heated argument without physical actions).
  • No Public Fear: The behaviour did not cause reasonable fear in a hypothetical bystander.
  • Duress: You were coerced into the act under threat of harm.
  • Mental Health or Cognitive Impairment: If a mental health condition contributed, a lawyer may seek a diversion under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
  • Unlawful Police Conduct: Evidence obtained through an illegal arrest or search (section 99 or 21, LEPRA) can be excluded under section 138, Evidence Act 1995.

Example: If you were involved in a scuffle to protect a friend, a lawyer can argue self-defence, supported by witness testimony.

4. Negotiating Plea Deals

A lawyer can negotiate with NSW Police Prosecutors or the Office of the Director of Public Prosecutions (ODPP) to:

  • Reduce Charges: Downgrade affray to violent disorder (section 93A) or common assault (section 61).
  • Amend Facts: Negotiate with the police to amend the fact sheet to remove aggravating factors, like alleged use of weapons.
  • Dismiss Related Charges: Secure withdrawal of additional charges, such as public order offences.

A guilty plea negotiated early can secure a sentencing discount of up to 25% under section 22 of the Crimes (Sentencing Procedure) Act 1999.

Example: For a minor affray, a lawyer might negotiate a plea to offensive conduct (section 4, Summary Offences Act 1988), securing a section 10 dismissal.

5. Securing Favourable Outcomes on Sentence

A lawyer can advocate for any of the following Outcomes:

  • Section 10(1)(a) Dismissal: No conviction, fine, or penalty.
  • Section 10(1)(b) Conditional Release Order (CRO): No conviction, with conditions like good behaviour for up to 2 years.
  • Community Correction Order (CCO): Community service or supervision instead of imprisonment.
  • Mental Health Diversion: Treatment under section 14 for offenders with mental health issues.

Example: For a first-time offender in a minor brawl, a lawyer might secure a CRO with counselling conditions.

6. Presenting Mitigating Factors

A lawyer can present mitigating factors to reduce penalties:

  • Character References: Letters from employers, family, or community members highlighting your good character.
  • Remorse: Evidence of apologies, cooperation with police, or restitution to victims.
  • Rehabilitation: Completion of anger management or counselling programs to demonstrate reform.
  • Hardship: Proof that a conviction would impact employment or family responsibilities.

Example: For a young offender, a lawyer might present evidence of community involvement to secure a section 10 dismissal.

7. Appealing a Conviction

If convicted, a lawyer can appeal to the District Court within 28 days under the Crimes (Appeal and Review) Act 2001 if:

  • The sentence is unduly harsh (e.g., excessive imprisonment).
  • New evidence supports your innocence (e.g., footage showing no public fear).
  • Procedural errors occurred during the trial.

A lawyer can also assist with a spent conviction under the Criminal Records Act 1991 after a crime-free period (10 years for adults, 3 years for juveniles).

The Court Process for an Affray Charge

The court process typically involves:

  1. Investigation:
    1. Police collect evidence, such as CCTV footage, witness statements, or police reports.
  2. Arrest or Court Attendance Notice (CAN):
    1. Police may arrest you under section 99 of LEPRA or issue a CAN for a Local Court appearance.
  3. Bail Application:
    1. A lawyer applies for bail under the Bail Act 2013, arguing you pose no risk.
  4. Trial or Plea:
    1. If pleading not guilty, a trial examines evidence to determine guilt.
    1. If pleading guilty, a sentencing hearing follows.
  5. Sentencing:
    1. Penalties range from section 10 dismissals to imprisonment, based on section 21A factors.
  6. Appeals:
    1. Appeal to the Court of Criminal Appeal if the outcome is unfair.

Steps to Take When Facing an Affray Charge

To protect your rights and improve your case outcome, follow these steps:

  1. Engage a Sydney Criminal Lawyer Immediately:
    1. Contact Nicopoulos Sabbagh Lawyers at info@nslaw.net.au or 0427 101 499 for a free consultation to assess your case and develop a defence strategy.
  2. Exercise Your Right to Silence:
    1. Avoid making statements to police without legal advice (section 89, Evidence Act 1995).
  3. Gather Evidence:
    1. Collect witness statements, CCTV footage, or photos to support your defence.
    1. Provide character references or proof of rehabilitation.
  4. Prepare for Court:
    1. Work with your lawyer to present a robust defence or negotiate a plea deal.
  5. Show Remorse:
    1. Consider apologetic gestures or completing rehabilitation programs to demonstrate reform.
  6. Appeal if Necessary:
    1. If convicted, appeal to the District Court or apply for a spent conviction.

Why Choose Nicopoulos Sabbagh Lawyers?

At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we are dedicated to delivering exceptional representation for affray, criminal, and traffic law matters in Sydney, NSW. Our team offers:

  • Specialised Expertise: In-depth knowledge of the Crimes Act 1900, Crimes (Sentencing Procedure) Act 1999, and Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
  • Proven Results: Securing section 10 dismissals, CROs, and charge reductions across Sydney courts, including Parramatta, Liverpool, and Campbelltown.
  • Court Navigation: Expertise in managing cases amidst disruptions, such as the Downing Centre Local Court closure until late 2025.
  • Ethical Representation: Adhering to the Legal Profession Uniform Law (NSW) and Solicitors’ Conduct Rules for transparent, reliable advice.
  • Accessible Support: Contact us at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au for a free consultation.

Don’t let an affray charge derail your future. Our Sydney criminal lawyers and traffic law specialists will fight tirelessly to protect your rights and achieve the best possible outcome.

Conclusion

Affray is a serious public order offence in NSW, carrying penalties of up to 10 years imprisonment and significant life consequences. A Sydney criminal defence lawyer can defend against an affray charge by challenging evidence, disputing public fear, raising defences like self-defence or lack of violence, and securing non-conviction outcomes like section 10 dismissals or CROs. At Nicopoulos Sabbagh Lawyers, we leverage our expertise to deliver tailored strategies, ensuring your record, career, and freedom are safeguarded. Whether facing an affray charge in a public brawl or group incident, our team is here to guide you through the legal process.

Take control of your case today. Contact Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au to schedule a free consultation. Let us help you fight your affray charge and achieve the best possible result in NSW courts.

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It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court.

Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact your Sydney Lawyers, Nicopoulos Sabbagh Lawyers.

*This article correctly reflects the Laws of NSW as of 3rd August 2025.

*Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship

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