S93C of the Crimes Act 1900 (NSW) states:
This is a table 1 offence meaning that the prosecution may elect to have it dealt with in the District Court or the Local Court. Dealt with summarily the Local Court can impose a maximum penalty of 2 years imprisonment. For a deep dive on what exactly constitutes as Affray, check out our blog dedicated to what exactly amounts to an Affray charge in NSW here.
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To prove affray, the prosecution must show beyond reasonable doubt that:
1. A person used, or threatened to use unlawful violence towards another person, and
2. That person intended to use, or intended to threaten to use, violence, and
3. The persons actions would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, and
4. The person did so without lawful excuse.
Words alone cannot constitute unlawful violence for the purpose of the section, there needs to be some physical act.
It is a defence to the charge of affray if the person acted in self defence of themselves or of another. We have won countless affray cases and can help you present evidence to prove your side of the story – for example, that you did not intend to cause other people to fear unlawful violence, or that a reasonable person would not have feared for their safety in the circumstances.
Affray usually reflects a serious example of violence. In determining the appropriate penalty the Court will consider the nature and degree of violence, you level of participation together with your subjective background.
Whilst our lawyers have been successful in securing non-conviction outcomes for client’s facing affray charges it is very uncommon and usually the product of careful and skilled negotiation with the prosecution on the facts.