‘Affray’ is threatening and violent behaviour conducted in public or, in some jurisdictions, in private. It must disturb the peace

Affray – Penalties and Defences

For every Australian government, safeguarding the public and preventing violent behavior are top priorities. Many legal restrictions are in place to address violent or threatening anti-social behavior. Authorities enforce laws prohibiting assault, harassment, stalking, sexual offenses, and, in recent times, have enacted new legislation in various jurisdictions to tackle unprovoked attacks fueled by alcohol, commonly referred to as ‘one-punch’ laws.

The charge of “making an affray” is one that can be made against someone who acts violently against the interests of the public.

What is affray?

“Affray” refers to violent and menacing actions carried out in public or, depending on the jurisdiction, privately. The tranquility must be disturbed. One or more people may be responsible for the offense. Affray is essentially a criminal offense that includes aggressive or menacing behavior against society; it does not, however, encompass intoxicated or unruly behavior. The word itself carries the meaning “to frighten,” therefore the behavior of the participants is not the sole necessary component to establish that someone has committed an affray. In an affray case, authorities can bring charges if the actions of the accused cause a person of reasonable firmness, present at the scene, to fear for their personal safety. In order to prove an affray charge, both the behavior and its result are pertinent.

The laws of several jurisdictions differ from one another.

For instance, in New South Wales, affray is punishable by law under section 93C(5) of the Crimes Act 1900 (NSW), regardless of whether the illegal behavior takes place in public or privately. According to Queensland’s Criminal Code Act 1899 (Qld), s. 72(1), the behavior must take place in a public setting or anywhere that the general public has access to.

Consequently, a fistfight or brawl that does not appear to have scared any onlookers may not be considered an affray. It is improbable that affray will be among the accusations that arise from the incident. In many jurisdictions, the prosecution need merely show that if there had been a witness to the incident, the concern that onlookers would have had for their safety would have materialized.

The early British “common law,” which dealt with offenses against public order, gave rise to the offence of affray. The offense encompasses a variety of actions, such as an individual threatening to use violence against one or more people, or one or more people fighting to the point where others in the vicinity start to worry for their own safety.

Penalties for affray

A finding of guilty to a charge of affray may result in a wide range of sanctions due to the variety of behaviors recognized as producing an affray. The court will consider various factors when determining an appropriate sentence, including the nature and provocation of the melee, the level of violence, the presence of aggravating circumstances like weapon use, any injuries or fatalities, the proximity of the affray to locations such as schools, and whether witnesses felt fearful for their safety.

Depending on the details, the crime may be classified as a “collective offence,” meaning that all parties involved, regardless of how much they personally contributed, are equally accountable for the affray. In actuality, though, judges consider the degree of involvement—that is, whether the accused started the altercation or was coerced into it by chance of being there.

If convicted guilty of affray, a person in NSW may face up to 10 years in prison according to the Act. The Act in Queensland only stipulates a maximum sentence of a year in jail. The Queensland Penalties and Sentencing Act 1992 (Qld) allows for the issuance of a community service order if the accused committed the offense in a public place while being adversely affected by an intoxicating substance. All jurisdictions’ courts also have the authority to impose a punishment or other requirement, like a restraining order, to prevent the accused from committing violent crimes in the future.

The Australian court has handled many high-profile cases of motorcycle gang affray, including one in which multiple attackers attacked passengers on an arriving airplane at Sydney Airport. In some of these cases—one in which a toddler was accidentally shot and killed—the court imposed lengthy jail terms.

Defences to a charge of affray

By proving they were defending themselves, a person might refute an accusation of affray. The defence could alternatively be based on the fact that the witness’s safety was not threatened or caused them to feel frightened. If the accused can demonstrate that they were not a part of the affray—that is, that they did not engage in combat or threaten anyone—they may also be able to mount a defense.

Different defenses could be applicable based on the jurisdiction. In New South Wales, one could establish a defense based on “necessity” or “compulsion,” indicating that their involvement in the affray was driven by another factor, such as ensuring the safety of the children.

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