1 September 2015

Assault v Affray
A common assault is the lowest degree of assault charge and is often laid for the use of unlawful force such as slapping and punching that does not break the skin. The offence requires the victim to provide evidence of the force used and if convicted, the defendant is liable to a maximum sentence of 2 years imprisonment.¹ The elements of the offence are:

1. used unlawful force on another,
2. with intent

A significantly more serious assault charge is that of affray. Historically affray was a charge that involved numerous persons and was generally used for serious public fights and brawls. Under statute² there is no requirement that an affray involve more than 2 people and certainly no requirement for the Prosecutor to demonstrate common purpose.³ This means an affray can amount to a fight between two individuals where ordinarily a charge of common assault would be laid.

However in contrast to assault there is no requirement for Police to obtain any evidence from the victim. In fact the charge of affray was introduced by the NSW Parliament to alleviate the Police of this requirement. This is because it was envisaged that it would be difficult for Police to demonstrate to the requisite standard the act and intent of defendants in melees involving numerous persons.⁴ As such, evidence of force may come from bystanders or even CCTV and may be general in nature. That is evidence of the broad use of force is sufficient as opposed to specific evidence of each and every blow. Further, it is not necessary to establish which defendant committed each specific act.⁵ The fact that specific evidence or evidence from a victim is not required to demonstrate an affray makes it an attractive charge to Police particularly where there are reluctant complainants. Further the charge of affray carries a maximum sentence of 10 years imprisonment in contrast to that of common assault which carries 2 years. As such the temptation to charge with the offence of affray in place of an assault becomes irresistible since the evidentiary requirements are lower whilst the potential penalty greater. The elements of affray are:

1. The use or threatened use of unlawful violence on another (the conduct)
2. which causes a person of reasonable firmness to fear for their safety. 

The question of what causes a person of reasonable firmness to fear for their safety is not relevant to a charge of common assault and it is this element that makes an affray charge more serious. This is because violent conduct that strikes fear in the general community is considered more serious.

The provision also states that no person of reasonable firmness need actually be present at the scene so the offence of affray can still be committed even if there are no bystanders experiencing the conduct. In this instance the courts refer to the "notional bystander" which is a fictitious individual who for the purposes of the element, is assumed to be a person of reasonable firmness. Where the notional bystander feels fear for his or her safety as a result of the conduct, the second element is engaged. However, the court's interpretation of the firmness of the notional bystander is often quite low. 

Self defence is available for the charge of affray since the provision refers to the use of unlawful violence.⁶ For further advice on self defence refer to our article The Law of Self Defence

Mersal & Associates specialise in criminal matters. For assistance or advice on an assault, affray or any matter involving self defence, contact our office for an appointment.

¹ Crimes Act 1900 (NSW) s 61. 
² Ibid s 93C.
³ Colosimo & Ors v DPP (NSW) [2005] NSWSC 854 at 19 & 29.
⁴ Ibid 30.
⁵ Ibid 54.
⁶ Ibid 20.