A person can be charged with affray if they use or threaten to use unlawful violence towards another person. This means that a person can be charged if they use physical force against another person, such as punching, shoving or kicking them. These acts of violence and threats of violence must be serious enough to cause a person of reasonable firmness to fear for their personal safety. An example may be where a person continuously swings a metal chair around in a busy fast food restaurant, striking a number of people in close proximity.
The offence of affray is found at section 93C of the Crimes Act 1900 and states;
“A person who uses or threatens unlawful violence towards another and whose conduct as such would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.”
Section 93C goes on to state:
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purpose of subsection (1).
(3) For the purposes of this section, a threat cannot be made by the use of words alone.
(4) No person of reasonable firmness need actually be, or be likely be, present at the scene.
(5) Affray may be committed in private as well as in public places.
Are there any defence available to a charge of affray?
In short, there are a number of defences available and they include:
- If you were not the person who committed the unlawful act.
- Where you did not use or threaten to use violence.
- Where it is argued that a person of reasonable firmness would not have feared for their personal safety because of your conduct.
- To raise self-defence, necessity or duress as the reason for your behaviour or conduct.
Why choose McKenzie McLoughlin Law?
An offence of affray can result in penalties including full-time imprisonment. It is quite important if charged with an offence of affray, to obtain specialised criminal lawyers. At McKenzie McLoughlin Law, our two lawyers, Josh McKenzie and James McLoughlin, are former prosecutors who know the law, and the available defences. They know how the other side works which is a significant advantage. Josh and James are client-focused and results-driven, so contact them today for legal representation.