So, Just What Is Affray?
Imagine a billionaire and a multi-millionaire, going blow for blow in a public street brawl in the middle of the day, the fight captured by photographers and splashed across front pages of newspapers.
Sure it’s hard to believe, but exactly what is the law regarding fighting in public? We’ve seen terrible consequences of the ‘coward’s punch’ that fells unsuspecting victims, and toughened laws sending drunken assailants who kill to mandatory jail sentences.
But what about public fisticuffs between mates or among family members? Can it be a private matter where the law has no role? Does someone have to make a complaint to police before charges are considered?
A two-sided brawl can be classified as affray, a crime against public order. Affray involves a disturbance of the peace that is violent, it can be public or in private, and, crucially, a bystander might reasonably be expected to be afraid.
Affray is a serious crime that carries a maximum ten years jail. Section 93C of the NSW Crimes Act spells it out:
“A person who uses or threatens unlawful violence towards another and whose conduct is such as 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.”
Curiously the section goes on to make it clear that the offense can occur even in a hypothetical situation where there isn’t actually anyone present other than the fighters. It’s enough that a person of reasonable firmness – meaning someone who isn’t unduly nervous – would have been frightened if they had been present.
Affray came into law in 1988 after the violent Milperra bikie clash with much much stiffer sentences than the more usual charge of common assault. Affray is being used more and more by police for public brawls as they don’t have to prove who was the aggressor.
Assault comes under Section 61 of the Crimes Act and is used when a person physically attacks another person but does not cause an injury that could elevate the charge to bodily harm or grievous bodily harm. It can include spitting or threatening to attack another person. Common assault has a two year maximum prison sentence.
If you – or a brawling billionaire – are charged it would be wise to get a good lawyer. There are defences against a charge of assault such as self defence or, in the case of a child, lawful chastisement. The consequences of a conviction can be very serious.