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Affray

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The offence of Affray (set out below) under s93C is contained within Part 3A – Division 1, ‘Riot and Affray’ of the Crimes Act 1900 (NSW). The origins of this statutory offence having stemmed from the common law offences relating to public disorder. Affray is similar to a charge of riot in that, it involves the use or a threat of unlawful violence however, unlike riot which requires 12 or more persons – Affray can be committed by an individual; the offence can also be committed either in public or private places. Further, a person can be liable for the offence of Affray by threatening unlawful violence towards another – whether they intended to use violence or not.

Where 2 or more persons threaten the unlawful violence towards another it is the conduct of the persons taken together in terms of assessing whether the conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. Hence, unlike the offence or riot – there is no requirement or element of common purpose for persons who join the melee.

The offence of Affray carries a maximum penalty of 10 years imprisonment – hence, it is a serious charge. However, as noted by Lord Gardiner LC in Button v DPP (see below) given the nature of a melee (such as identification of individual conduct – also see Colosimo) a conviction for Affray may be more readily obtained than a conviction for assault. Hence, the offence of Affray has become more frequently used by police. However, to the author’s mind the gravamen of the offence which elevates this offence above assault is the potential for invoking fear in persons who may be present at the scene – noting that it is an objective test relating to a person of reasonable firmness being present at the scene.

The mental element or mens rea for affray (s93D(2)) is established if the person:

1. Intends to use violence;
2. threatens violence; or
3. is aware that his or her conduct may be violent or threaten violence.

Given that the violence used or threatened must be unlawful – self defence applies to the offence of Affray (See para. 20 of Colosimo below). Hence, if self defence is raised the prosecution must negative any issue of self defence beyond a reasonable doubt.

The offence of ‘Affray’ and its statutory construction was considered by His Honour, Johnson J in the case of Colosimo and Ors v Director of Public Prosecutions (extracted below).

CRIMES ACT 1900 – SECT 93C

93C Affray

(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.

CRIMES ACT 1900 – SECT 93D

93D Mental element under sections 93B and 93C

(1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.

(2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.

(3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.

Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854 (25 August 2005) per Johnson J

The Offence of Affray

9 In New South Wales in the 1980s, a number of incidents occurred which saw persons charged with the common law offences of riot and affray. These incidents included the Viking Tavern, Milperra, shooting in September 1984 (affray: R v Annakin (1988) 17 NSWLR 202) and the Mount Panorama disturbances in April 1985 (riot: Anderson v Attorney-General for NSW (1987) 10 NSWLR 198).

10 An unlawful affray was an indictable common law misdemeanour: Annakin at 214D-E. Likewise, riot was a common law misdemeanour. In Anderson, Kirby P observed at 203E that riot was “an area of the law where the courts do well to leave adaptation of the law to suit suggested modern conditions to Parliament”. McHugh J, in Anderson, at 209B-C observed that, despite the antiquity of the offence of riot, the precise elements of the offence were not settled.

11 Against this background, legislation was enacted in 1988 in New South Wales which provided for statutory offences in the area of riot and affray. Part 3A (ss.93A-93E) of the Crimes Act 1900 was enacted. The common law offences of riot and affray were abolished: s.93E. Statutory offences of riot (s.93B) and affray (s.93C) were created. Reference will be made to the terms of these provisions later in this judgment.

12 In the same year, the Summary Offences Act 1988 was enacted which included, in s.28, a summary offence of violent disorder (see now s.11A of that Act). In the course of the Second Reading Speech with respect to the summary offence of violent disorder contained in the Summary Offences Bill 1988, the Attorney-General, Mr Dowd, said with respect to clause 28 of the Bill (Hansard, Legislative Assembly, 31 May 1988, page 804 at 807):

“The need for a summary offence akin to riot has been demonstrated by instances of group disorder, particularly among spectators at sporting events. Although there is nothing new about this type of behaviour, the common law offences of riot and affray have proved inadequate to deal with these events. Both riot and affray carry a maximum penalty of life imprisonment and may be charged only on indictment, thereby excluding summary jurisdiction.

A complete review of the common law offences of riot, affray and unlawful assembly is being undertaken by the Criminal Law Review Division, and it is anticipated that a comprehensive code of offences will be introduced into Parliament during the budget session, to complement this offence.”

13 That “comprehensive code of offences” was contained in the Crimes (Amendment) Bill 1988. In the course of the Second Reading Speech with respect to that Bill, which included the new Part 3A of the http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/Crimes Act 1900, the Attorney-General, Mr Dowd, said (Hansard, Legislative Assembly, 19 October 1988, page 2600-2601):

“Reform of the offences of riot, rout and affray is urgently needed. At present they are common law offences, and as such may only be dealt with on indictment, and carry maximum penalties of life imprisonment. They are offences relevant to public order but because of the onerous limitations imposed procedurally and substantively they are not often charged. For example, in 1985, 95 persons were charged with riot arising out of the Easter Bathurst motor cycle races. Considerable difficulties have arisen in the prosecution of these accused. The maximum penalty for the offences charged is life imprisonment, and there is a consequent inducement for a plea of not guilty. Additionally, the common law position is less settled than it could be if defined by statute. This has had an effect on the prosecution’s ability to convince a jury about the guilt of an accused. Consequently several appeals have been made. The financial cost to the State has been enormous. Without mentioning specific cases, various of the committal proceedings are still pending.

In the United Kingdom the common law offences of riot and affray have been repealed and replaced with statutory offences. These reforms were based on a number of reports, including the ‘Law Commission Report on Criminal Law: Offences Relating to Public Order’. The recommendations of the Law Commission in the United Kingdom sought to retain, for the greater part, the principal features of the structure and application of the common law offences while eliminating any uncertainties and anomalies. This bill will abolish the common law offences of riot, rout and affray. Two new statutory offences of riot and affray are enacted. The offence of rout is not replaced. The common law offence of rout is similar to riot, but without the execution of the common purpose. The dividing line is vague between a rout, which is an act moving towards the execution of a common purpose, and a riot, which is an act done in execution of that purpose. In modern times, rout has not been charged as a separate offence, because a jury could convict a person of rout on an indictment for riot if the complete offence of riot was not proved.

The United Kingdom Public Order Act 1986 contains statutory offences of riot and affray. A separate offence of rout was considered unnecessary. The Law Commission took the view that the offence of rout was obsolete and recommended that it should be abolished and not replaced. I agree with this view and, accordingly, the offence is not replaced. The new offence of riot is found in new section 93B. For the offence to be committed, a group of at least 12 persons must use or threaten unlawful violence for a common purpose in a way that would arouse fear in a bystander of reasonable firmness. Each person in the group who intends to use such violence, or who is aware that his or her conduct may be violent, will be guilty of the offence.

The new offence of affray is found in new section 93C. Affray is similar to riot in that it involves the use of a threat of unlawful violence. However, it does not require the existence of a group, and a person who threatens violence without intending to use it may be guilty of the offence. This offence may be committed in private as well as in public places. If, for example, a fight breaks out in a private place between a number of people, some of whom spill out on to an adjacent road, it would be anomalous if only the latter were guilty of affray, even though the other elements of the affray were satisfied by all of the participants, and the serious fighting had actually occurred in the private place. The maximum penalty for riot will be 10 years’ imprisonment. The maximum penalty for affray will be five years’ imprisonment.

The creation of these offences complements the new summary offence of violent disorder that I introduced as part of the Summary Offences Act 1988. As a result of these reforms, the law relating to public order has now been revised completely.”

14 The Attorney-General’s reference to the United Kingdom reforms contained in the Public Order Act 1986 (UK) is significant. As will be seen, the statutory offence of affray created in New South Wales in 1988 follows very closely the equivalent provisions in the Public Order Act 1986 (UK). In these circumstances, authorities concerning the proper construction of the United Kingdom provisions will assist in the construction of the New South Wales provisions.

The Offence under s.93C Crimes Act 1900

15 Section 93C Crimes Act 1900 is in the following terms:

“93C Affray

(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 5 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.”

16 Section 93A defines the word “violence” for the purposes of Part 3A of the Act in the following terms:

“In this Part:

‘violence’ means any violent conduct, so that:

(a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and

(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).”

17 Section 93D provides for, inter alia, the mental element for a s.93C offence. Section 93D provides:

“93D Mental element under sections 93B and 93C

(1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.

(2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.

(3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.”

18 Although the present appeal does not involve the offence of riot contained in s.93B of the Act, it is useful to set out the provision given certain arguments which were advanced on the appeal. Section 93B provides:

93B Riot

(1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 10 years.

(2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.

(3) The common purpose may be inferred from conduct.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Riot may be committed in private as well as in public places.”

19 The summary offence of violent disorder now contained in s.11A Summary Offences Act 1988 resembles, in a number of respects, the offence of riot contained in s.93B. The http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s11a.htmls.11A summary offence requires “three or more persons” to be present together using or threatening unlawful violence, as opposed to the “twelve or more persons” required for an offence under s.93B. There are some other points of difference between the two statutory offences which are not presently relevant. It is sufficient to note that a s.93C offence may be contrasted with a s.93B or a s.11A offence in that a s.93C offence does not require a specified number of persons to be present together using or threatening unlawful violence. An individual who is acting alone in using or threatening unlawful violence towards another may be convicted of an offence under s.93C. If two or more persons use or threaten unlawful violence, the conduct of those persons may be taken together and considered for the purposes of determining whether an offence of affray has been committed under s.93C(1) of the Act. However, the offence does not require a group of persons to be so acting for an offence to be committed.

20 At common law, it was held that self defence is an issue which may be raised by an accused in answer to a charge of affray and, if he does so, the prosecution bears the onus of excluding the possibility that the accused was acting in self defence when committing the acts on which the charge of affray is based: R v Honeysett (1987) 10 NSWLR 638 at 640. There is no express reference in Part 3A to self defence. However, s.93C(1) applies to a person who “uses or threatens unlawful violence towards another”. The requirement for violence to be “unlawful” is significant. Of course, not all violence is “unlawful”. At common law, a violent act upon another which was done in self defence was done with justification or excuse and was not unlawful: Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 at 662. The courts will construe a statute in conformity with the common law and will not attribute to it an intention to alter common law principles unless such is manifested in accordance with the true construction of the statute: R v Downs (1985) 3 NSWLR 312 at 321. Where the common law permitted self defence to constitute a defence to a charge of affray, it would take clear words to remove it with respect to the s.93C offence. Those words do not appear and the use of “unlawful” in s.93C(1) confirms the continued availability of self defence. It was common ground at the hearing before me that the provisions of ss.418 and 419 Crimes Act 1900 have application with respect to a charge of affray under s.93C of the Act.

21 Although s.93C has been in existence since 1988, it does not appear that the proper construction of the section has been considered by this Court or the Court of Criminal Appeal in the context of an appeal against conviction. The section has been referred to in a number of appeals against sentence: R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166. In each case, the Court was considering an appeal with respect to sentence imposed following a plea of guilty to a s.93C offence in the District Court. In Fajka, Howie J (Hulme and Simpson JJ agreeing) referred at paragraphs 28-29 to the operation of s.93C(2) of the Act:

“Of course the applicant’s conduct had to be considered in the context of the fact that his brother had become involved in a brawl with guests and staff at the hotel on what was in effect a family occasion, with children present. But that was the limited basis upon which the brother’s conduct aggravated that of the applicant. Section 93C(2) does not mean, in my opinion, that the applicant was to be punished for all the conduct of both himself and his brother. Rather the section is concerned with ensuring that the conduct of the two of them is considered in determining whether that conduct ‘is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety’.

In a case such as the present the applicant could only be punished for that part of his and his brother’s conduct which gave rise to the offence of affray and not that conduct which also resulted in some other offence or offences being committed by the brother, for example an assault occasioning actual bodily harm. In particular where the brother was charged with two offences of affray and the applicant only one offence, the sentencing court had to be careful not to take into account that part of the brother’s conduct that gave rise to the second offence with which the applicant was not charged.”

22 It is apparent that the offence under s.93C has its origin in the statutory offence of affray contained in s.3(1) Public Order Act 1986 (UK). Reference to this Act in the Second Reading Speech for the Crimes (Amendment) Bill 1988 (see paragraph 13 above) as well as the close similarity between the two sets of provisions tends to confirm that the UK Act was the foundation for the s.93C offence in New South Wales. Section 3(1) of the UK Act provides as follows:

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where two 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 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.”

23 Section 6(2) Public Order Act 1986 (UK) provides that:

(2) A person is guilty of violent order or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.”

24 Section 8 of the UK Act contains a definition of “violence” in terms similar to that contained in s.93A of the Act. Section 9 of the UK Act provides that the common law offences of, inter alia, riot and affray are abolished.

25 In I v Director of Public Prosecutions [2001] UKHL 10; (2002) 1 AC 285, the House of Lords considered the proper construction of s.3(1) of the UK Act. In the leading judgment, Lord Hutton observed at paragraph 11 that the 1983 Report of the Law Commission on Offences Relating To Public Order stated, in paragraph 3.1, that it considered that the new statutory offence of “affray should be similar to the common law offence with some clarification and narrowing of its elements”. Upon this basis, Lord Hutton accepted that reference to common law principles with respect to affray was permissible in construing the statutory offence contained in s.3(1) of the UK Act.

26 In I v Director of Public Prosecutions, Lord Hutton said at paragraph 17:

“The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face to face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear.”

27 Lord Hutton said at paragraph 24:

“Therefore it is apparent that the Law Commission and Parliament intended that the offence set out in section 3 should penalise those who engage in a fight, whether they are landing blows, or attempting to land blows, or threatening to land blows, but it is also clear that in such circumstances the victim or victims are bound to be present with the offender or offenders. Accordingly I regard it as clear that the section does not make guilty of an affray a person whose conduct constitutes a threat of violence to persons who are not present. This conclusion also derives support from the requirement in subsection (1) that the conduct of the offender is such that it would cause a bystander ‘present at the scene’ to fear for his personal safety. The concept of presence at the scene suggests that the notional bystander would be in the presence of both the offender and the victim. It is also relevant to observe that there is no reported case of affray where the victim was not present at the scene where the accused threatened violence.”

28 Lord Hutton concluded his judgment in I v Director of Public Prosecutions with the following statement at paragraph 28:

“The present case demonstrates that a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.”

29 At common law, it was held that an element of common purpose is not essential to constitute an affray. It was wrong to conclude that affray was, of necessity, a joint offence: Taylor v Director of Public Prosecutions [1973] 2 All ER 1108 at 1110, 1114, 1116. It is noteworthy that s.98B(1) requires that the 12 or more persons who are present together in an alleged riot act “for a common purpose”. There is no reference to common purpose in s.93C of the Act. This is further confirmation that the statutory offence of affray in s.93C may be committed by an individual and does not require a form of group action.

30 It has been recognised that conviction for assault may be more difficult than conviction for affray. In Button v Director of Public Prosecutions [1966] AC 591, Lord Gardiner LC, in delivering the judgment of the House of Lords, said at 627-628:

“It was further argued that no practical purpose is served by re-establishing the law relating to affray, since it could only lead to the multiplication and overlapping of charges. Where a charge of affray could lie, it is said, so too would a charge of assault, and thus the latter charge suffices to protect the public. The respondent, however, contended that evidence is difficult to obtain in the mélée of disturbance and fighting and that there are situations in which it would be possible to convict of affray on evidence that would not justify a conviction of assault. The Court of Criminal Appeal took the view that the offence of affray was a useful part of the criminal law in modern times. I agree with that view.”
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