Best Defence Against Affray Charges

An ‘affray’ is where you use or threaten unlawful violence and your conduct would be enough to cause a reasonable person at the scene to fear for their personal safety.

It is an offence under section 93C of the NSW Crimes Act that carries a maximum penalty of 10 years imprisonment in the District Court or 2 years in the Local Court.

An affray can occur in a public or private place and no persons actually need to be present.

So, for example, an affray could occur if you were captured on CCTV footage and overheard acting aggressively in an area of a pub where there is nobody else.

Words alone are not enough for an affray to be established, there must be some conduct amounting to a threat or use of unlawful violence.

Pleading Not Guilty

If you don’t agree that you caused an affray, your lawyer should fight for the case to be dropped.

This can be achieved by:

• Obtaining any statements and materials that support your case,
• Writing and advising the prosecution of inconsistencies and other weaknesses in the case against you,
• Advising the prosecution that you have a valid defence, and
• Pressing for the withdrawal of the case.

If the prosecution refuses, your criminal lawyer should be experienced at winning affray cases similar to yours.

Alternatively, your lawyer may be able to convince the police to withdraw the charge of affray if you plead guilty to a less-serious charge such as ‘common assault’.

Defences

Your lawyer can advise you if any of the following defences apply:

Self defence

This is when you are defending yourself, another person or property from an aggressor or thief.

For example, if you fear being attacked and act aggressively to warn-off potential attackers.

Necessity

This is when you are in an emergency situation and commit the alleged offence to get away.

For example, if you are surrounded by a threat and act aggressively to get away.

Duress

This is when you are forced to commit the offence.

Pleading Guilty

If you wish to plead guilty, any of the following penalties may apply:

Non Conviction Order

This means that you are guilty but the court does not impose a criminal conviction upon you.

The court will look a range of matters when deciding whether to grant a ‘section 10 dismissal or conditional release order’ – including the incident itself, the lead-up to the incident, your general character and your personal circumstances

Fine

This means that you will have to pay a sum of money.

You will need to pay the fine within 28 days unless you apply at the court office for extra time to pay.

Good behaviour bond

This means that you cannot commit any further offences for the duration of the bond.

The bond may have additional conditions, such as seeing a Community Corrections officer and complying with their directions.

Community service order

This means that you must undertake a specific number of hours of unpaid work over a 12 month period.

The maximum is 500 hours.

Intensive correction order

This means that you come under the supervision of the Department of Corrections and are required to undertake 32 hours of community service work per month.

You may also be required to undertake rehabilitation programs, attend conferences and be subjected to urinalysis and monitoring.

Intensive correction orders can last up to 2 years.

Home detention

This means that you must generally stay at home for the duration of your sentence, subject to exclusions such as approved work or attending medical appointments or counselling.

Home detention orders can last up to 18 months.

Suspended sentence

This is when you are sentenced to a period of imprisonment, but are not actually sent to prison as long you comply with any conditions and do not commit any further offences.

Suspended sentences can last up to 2 years.

Full time prison

This is when you are sent to gaol.

Full time imprisonment can only be imposed if no other alternative is appropriate in the circumstances.

Call our experienced criminal lawyers today for a free first appointment where we can discuss your affray case and advise you of the best way forward.

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