The term ‘affray’ is an old English one, derived from the French ‘effrayer’ (terror).

It is an offence against public order, though it may be committed in a private or public place. Section 93C of the Crimes Act 1900 (NSW) sets out the offence of affray. The charge of affray requires proof that:

  • the accused used or threatened unlawful violence; and
  • the accused intended to, or was aware that, their conduct may be violent or threatening; and
  • a person of reasonable firmness present at the scene would fear for their safety as a result of the conduct of the accused.

A charge of affray may be dealt with summarily in the Local Court, unless the prosecutor or the accused elect otherwise. If dealt with summarily, the maximum penalty is two years imprisonment or 100 penalty units. If dealt with on indictment, the maximum penalty is ten years imprisonment.

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