affray

Affray and violent public disorder law in New South Wales

Indian community representatives have condemned a brawl in Harris Park that occurred on Friday, 28 August 2020 around 10:00 pm. It is reported that nearly 40 men arrived on Wigram Street in Harris Park before the fight spilled onto the road, stalling traffic, and members of the two groups started hurling insults and exchanging blows. It is alleged that the brawl was arranged over the social media app, TikTok, after a feud occurred between the members of the Punjabi and Harayana community.

It has been confirmed that two men have been arrested. A 33-year-old man was arrested and charged with affray, using carriage service to menace, harass and offend and public threatening or inciting violence. Another 30-year-old man was arrested and charged with dangerous driving offences and common assault. The Police are now investigating whether the brawl was racially motivated. If it is proven the brawl occurred due to hate or any other crime inciting intolerance, there may be additional charges.

What is “Affray”?

Affray is a common charge for violent public conduct that disturbs peace. Police often prefer to use this charge when they believe they are unable to prove an assault. Conduct such as violence, threats and anti-social behaviour can be included under this charge. These charges differ from assault, as they involve the element where a person of reasonable firmness (i.e. an innocent bystander/witness), who is not a participant of the violence, being disturbed. This means the prosecution does not need to prove an innocent bystander was physically hurt – as long as they would feel their personal safety is at risk, it is enough to prove a charge of affray.

Affray

What the prosecution needs to prove:

Section 93(C)(D) of the Crimes Act 1900 provides the elements of the offence of affray:

  1. A person used or threatened unlawful violence towards another
  2. Their conduct would cause a person of reasonable firmness (e.g. a witness) present at the scene to fear of their own personal safety
  3. That the person intended to use violence or is aware that their conduct may be violent or threaten violence

It is also important to note that under subsections (2)-(5):

  • A threat cannot be made by the use of words alone
  • A person of reasonable firmness does not actually need to be, or likely to be, present at the scene of the violent conduct
  • Affray can be committed in both private and public places
  • If 2 or more people use/threaten unlawful violence, it is the conduct of them taken together that must be considered

Examples of affray can include circumstances such as:

  • Road rage
  • A public brawl or fight
  • Participating in a violent protest
  • Threatening violence to another person in public

Penalties:

A person charged with affray is liable to imprisonment for 10 years. However, a guilty finding of the charge may result in a wide range of penalties as the Court will determine an appropriate sentence given the nature of the incident.

Alternative penalties may include an Intensive Correction Order (ICO), Community Correction Order (CCO).

Other than the usual sentencing mitigating factors, the court will consider the totality of criminality. The factors which may be considered to determine this include the degree of violence, if any injuries occurred as a result of the conduct, any aggravating circumstances (e.g. if weapons were used), and the location where the affray took place.

For example, in R v Moon; R v Clarke; R v McCarthy [2020], the judge noted that the incident which occurred lasted for a short period of time and did not involve violence. This led His Honour to concluding that the affray was at a very low level of objective criminality (even making an allowance for the number of people who were in attendance of the incident). All defendants were convicted and sentenced to a Community Correction Order, which varied from 12 to 15 months.

Defences:

A person charged with affray may defend a charge by arguing they were acting in self-defence. This may be in the context of duress or necessity. If a defendant was to argue self-defence, they would need to also prove that their actions was proportionate to the threat they faced.

Also, if the prosecution cannot prove the elements of the offence under s 93C of the Crimes Act, a person cannot be found guilty of the offence. For example, a defendant can argue that:

  • They did not take part in the affray
  • They did not make threats to anyone
  • A witness would not fear for their own personal safety

 

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

The above information is intended as general information and is not intended to be relied on as legal advice.

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