When an Affray is not an Affray.
This offence appears in the Crimes Act 1900 in NSW and has experienced growth and overuse in recent years by the police.
The question is under what circumstances is it appropriate for police to charge you with this offence under section 93C of the Crimes Act 1900?
I would suggest most of the time the offence is misinterpreted and is used inappropriately and outside the spirit of the law.
What is an Affray?
Affray is well settled and evolved from the Common Law.
It was codified in the Crimes Act back in 1946 was last amended in its current form in 2005 and now forms the law in New South Wales:
Section 93C sets out the relevant provisions:
(1) 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.
(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 purposes 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 to be, present at the scene.
(5) Affray may be committed in private as well as in public places.
Characteristics of this offence are that:
- Self-defence is available.
- Common purpose or joint criminal enterprise is available when 2 or more persons engage in or threaten the unlawful violence toward another.
- A threat by words alone does not constitute an affray.
- Affray can be committed in private as well as a public place
I do not intend to discuss the elements in (1) or (2) which are fairly self-explanatory.
However, the third element of whether the conduct (the act itself) is such that it would cause a person of reasonable firmness (present at the scene) to fear their personal safety needs clarification.
The idea of the “Notional Bystander”
There is a misunderstanding over what needs to be demonstrated when conduct causes “a person of reasonable firmness at the scene to fear for his or her personal safety” and the additional characteristic that ‘no person of reasonable firmness need actually be, or be likely to be present at the scene.’
At face value, this would seem to be a straightforward concept except it can get complicated when you begin to drill down into the unique factual merit of what it means when a legal argument arises over whether a person of ‘reasonable firmness’ (or the UK reference, “hypothetical or notional bystander”) was present (or not) at the time, and whether the incident itself objectively caused fear for personal safety.
What is the Dominant Purpose for the Offence?
While the offence allows for an affray to be committed in a private place, the dominant purpose of the offence is to maintain public order.
The most recent amendment was assented via the Law Enforcement Legislation Amendment (Public Safety) Bill 2005 which was borne from the Redfern Riots in February 2004, the Macquarie Fields Riots in February 2005, and the Cronulla Riots in December 2005.
The then Premier of NSW Morris Iemma stated in clear terms the purpose and spirit of the legislation in the 2nd Reading Speech on the 15 December 2005:
The Bill did not evolve from the private or personal type offences such as domestic violence or the humble common assault.
The Crimes (Personal and Domestic Violence) Act 2007 was created to address the scourge of domestic violence in our community.
As such, the offence of Affray cannot and never will be a substitute for offences akin to common assault or domestic violence.
To that end an Affray is not an offence used for protecting an individual victim, rather it is an offence to protect the public who may have been put in fear because of unlawful violence.
It should be remembered that although it is not a proof that persons need to be present, it is a proof that requires that the conduct would cause fear for a person’s safety.
The circumstance of whether a person of reasonable firmness is or may have been put in fear is an objective question.
For example, if there is a fight between 2 people in a car park it is conceivable that persons in the immediate vicinity may not be put in fear because it is a wide open space where their involvement is of a mere observer or in some circumstances a curiosity to film the event and post it on-line for likes. They are hardly in fear and rather than flee they may go to the aid of the persons to break up the fight and not be put in fear at all.
However, in an alternate universe should the same fight occur in the waiting room of a doctor’s surgery, which is a confined space where the options for distance and escape are limited and the circumstances of the threat are more confronting and tangible and in the face of the person, this may be a situation where the ‘hypothetical bystander’ could be put in fear.
R v Sanchez [1996] Crim L R 572 CA.
This kind of “proximal distinction” is explained in the “notional bystander test” in the case of Sanchez.
This case originates from England and while it is not the law in New South Wales, it is persuasive and has been argued recently, especially in matters where an affray offence has been preferred in place of a domestic, intimidation, or personal assault charge and where the parties are hostile and unfavourable.
Sanchez asserts that the “hypothetical bystander” rather than the “victim” must be put in fear for their personal safety. Therefore, it is insufficient for the police to simply prove that unlawful violence had been used against the intended victim, and as some kind of natural by-product, the incident would have equally caused others, as bystanders to be put in fear.
This approach is wrong.
There must be evidence that the violence transferred to the ‘notional bystander’ that also caused them to fear for their personal safety.
Leeson v DPP (Unreported) [2010] EWHC994 (UK).
This was a case that was eventually decided in the High Court in England.
Leeson involved the appellant (Carol Leeson) who was intoxicated holding a knife toward the victim, her husband, Simon O’Keefe in the bathroom of their private premises. The knife was held at waist height, and she voiced that she was going to kill him.
The facts state she was calm and the knife remained still and made no move to attack. O’Keefe also believed she would not attack him. O’Keefe was unfavourable to the police investigation and the charging of Leeson. Nevertheless, Leeson was charged with Affray under section 3 of the Public Order Act 1986 (UK).
It was alleged by the prosecution that the appellant’s threat to kill O’Keefe while she was holding the knife constituted a threat of unlawful violence and in the circumstances would have caused a person of reasonable firmness present to fear for their safety.
The question was whether an offence of Affray could be sustained where the likelihood of the hypothetical person (or notional bystander of reasonable firmness being present) was low.
It was determined in this context that for someone to be guilty, there must be a real possibility and not just a fanciful one that if a person of reasonable firmness was present (or notionally so) the conduct would have caused them to fear. The Court determined there was no such real possibility.
Justice Rafferty stated:
“These events took place within a matter of seconds in a room that had been previously locked in an unoccupied house with no expectation of any third party entering the house, let alone the room….the facts support the conclusion that the threat was personal. Though as I have accepted, a remote incidence could constitute affray, and although I have reminded myself that the hypothetical bystander in a small, confined room might fear for his safety, nevertheless I struggle to see how on review…contextually this evidence supports a conviction. These were exchanges in private. The authorities read together…make it plain that the object of the Act is to address public order…as I have set out, with no realistic possibility of a third party entering, was capable of proving a public order offence. At its highest, it was focused, directed oral threats against one man. …Evan (sic) if a notional bystander had found entry to the bathroom, in my view any fear he may have exhibited could arguably be not for his own safety but for that of Mr O’Keefe…”
Blinkhorn [2006] England and Wales Court of Appeal, Criminal 1416.
In Blinkhorn, the appellant was at a drug treatment centre when his former girlfriend arrived and slashed him with a razor. The appellant then chased and pushed her down and banged her head several times violently against the pavement. This incident was also not found to be an Affray.
The commentary, in this case, is strikingly similar to that contained in the 2nd Reading Speech constituting the current spirit and intent of an Affray offence in New South Wales:
“Like the common law offence…it [affray] is designed for the protection of the bystander. It is a public order offence. There are other offences for the protection of persons at whom violence is aimed. The definition of affray is very wide, and the court agreed with the defendant’s counsel that care has to be taken to avoid extending it so widely that it could cover every case of common assault. Common assault may be very trivial so that it would not cause anyone to fear…but where the assault threatened serious harm to the victim there may be evidence of affray, depending on the circumstances. The person of reasonable firmness present in a small room, as in the present case, might fear for his personal safety, whereas the person observing the same conduct in an open space would not. The holding that the facts in the present case fall within the definition of the offence…but it is somewhat remote from the kind of incident for which the offence was intended. The common law which it was intended to replace…’was typically charged in cases of pitched street battles between rival gangs spontaneous fights in public houses, clubs and at seaside resorts and revenge attacks on individuals…the factual background…was not sufficient to sustain a charge of affray, otherwise virtually any common assault could be charged with affray.”
The decision stresses that Affray is a public order offence and is not to be used as a supplementary offence against the person.
The hypothetical bystander (or a person of reasonable firmness) represents the public. And ultimately it wholly insufficient for the prosecution to prove only that unlawful violence was used against the victim.
It must be such that the unlawful violence (or threat) would have caused a ‘reasonably firm bystander’ to have also feared for his or her safety.
So, if the only evidence is that the violence is focused solely on the victim then the offence cannot be proved.
The Practical Reality
The UK offence and the elements for Affray under section 3 of the Public Order Act are drafted identically to section 93C of our Crimes Act.
Arguably the same legal concept of the ‘notional bystander’ test is highly persuasive and filters down to our criminal justice system.
As such, from a practical point of view, when police are assessing charges of Affray they must consider the circumstances and whether they are consistent with the spirit of the legislation. Namely, there must be serious and indiscriminate violence not only to a victim but to the public.
Examples:
- A fight between 2 or more people in a place where members of the general public are present (for example in a club, pub, restaurant, or street) with a level of violence that would put them in substantial fear as opposed to a passing concern) for their safety (even though the fighting is not directed towards them).
- Indiscriminate throwing of objects directed toward a group of people in circumstances where serious injury is or likely to be caused (such as the Redfern, Macquarie Fields, and the Cronulla Riots).
- The wielding of a weapon likely to cause people substantial fear for their safety.
- A person armed with a weapon who, when approached by police, threatens to use it against them.
As such, violent incidents within a dwelling should not be charged with an affray offence where an assault or intimidation offence would be more appropriate in the circumstances.
If there is insufficient evidence to proceed on the assault or intimidation offence then it will depend on the circumstances as to whether an affray charge is appropriate and whether there is a possibility, on an objective and proximal basis that a person of reasonable firmness could be put in fear for his or her personal safety.
Conclusion
If you have been charged with a violence-related offence, please contact us as soon as possible at (02) 8824 4736 or 0411 460 034 and we will be able to provide you with expert advice regarding your case.
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