Affray in NSW.

The news, in summary.

Just after 12.30am on Saturday, 26 July 2026, emergency services were called to King Street, Newtown, after reports that a teenager had been assaulted by a group. Police say a 17-year-old boy and an 18-year-old man known to him were involved in a fight with three unknown males, and that during the fight the 17-year-old was stabbed. He was treated for stab wounds to his head and back and taken to hospital in a stable condition. Police recovered two knives at the scene. The 18-year-old was arrested and taken to Newtown Police Station, where he was charged with affray.

That matter is before the court and the person charged is presumed innocent. What follows is about the law, not the individual.

The point of interest is the choice of charge. When a fight breaks out in a public place and it is not clear who did what to whom, affray is often the count police reach for. It captures the whole episode without the Crown having to prove a specific blow landed on a specific person. That is its strength for the prosecution, and it is why so many people are surprised to learn that a charge they had never heard of carries a maximum of 10 years.

What is affray under section 93C?

Affray is a public order offence in Part 3A of the Crimes Act 1900 (NSW). Under section 93C(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 their personal safety, is guilty of affray.

Read that again, because the test is not what it looks like at first. The offence does not ask whether a real bystander was frightened. It asks whether the conduct would have frightened a hypothetical person of reasonable firmness, had one been there. Section 93C(3) makes the point plain: no person of reasonable firmness need actually be, or be likely to be, present. So a fight on an empty street at 3am can still be an affray. The bystander is a legal yardstick, not a witness.

Two limits sit in the section. A threat cannot be made by the use of words alone, so shouting a threat, without more, is not affray. And where two or more people use or threaten the violence, it is their conduct taken together that is judged. That is what lets police charge a group brawl as a single affray rather than as a set of separate assaults.

What is the maximum penalty for affray in NSW?

The maximum penalty for affray is 10 years imprisonment. That maximum applies when the matter is dealt with on indictment in the District Court.

Most affray matters do not go there. Affray is a Table 1 offence under the Criminal Procedure Act 1986 (NSW), which means it is dealt with in the Local Court unless the prosecutor or the accused elects to have it heard in the District Court. If it stays in the Local Court, the most the court can impose for a single offence is 2 years. Keeping an affray in the Local Court, where that is open, is often the single most valuable thing that can be done for a client, because it caps the exposure and it takes a jury out of the picture.

Whether the matter is elected up often comes down to how serious the conduct was. A short scuffle is a very different case from a sustained group attack with weapons, and the presence of a weapon changes both the charges laid and the likely penalty. Where a fight ends with someone stabbed or badly hurt, police usually lay more serious counts as well, such as reckless wounding, assault occasioning actual bodily harm, or wounding with intent to cause grievous bodily harm. Affray then sits alongside those charges as the count that covers the melee itself.

How do police prove affray?

The Crown has to prove three things. First, that the accused used or threatened unlawful violence towards another person. Second, that the conduct would have caused a person of reasonable firmness at the scene to fear for their safety. Third, the mental element in section 93D: a person is guilty of affray only if they intend to use or threaten violence, or are aware that their conduct may be violent or threaten violence.

In practice the case is usually built from CCTV, phone footage, and the accounts of the people involved. A busy street like King Street is well covered by cameras, and much of the footage now comes from bystanders' phones. The evidence tends to show a chaotic scene rather than a clean sequence, which cuts both ways. It can put the accused in the middle of the violence, or it can leave real doubt about who was doing what.

That doubt is the heart of most defended affray cases, and it is dealt with below.

What is the difference between affray and riot?

Affray and riot are the two main group violence offences in Part 3A, and the line between them is about numbers and purpose. Riot, under section 93B of the Crimes Act 1900, needs 12 or more people who are present together and who use or threaten unlawful violence for a common purpose. It carries a higher maximum of 15 years. Affray needs neither the numbers nor the shared purpose. One person can commit it.

Riot is rarely charged, because 12 people acting for a common purpose is a demanding thing to prove. Affray does the everyday work. A brawl between two small groups outside a venue is an affray, not a riot, and that is the charge police almost always lay for street violence.

Unlike Victoria and the United Kingdom, NSW has no separate statutory offence of violent disorder to fill the gap between the two. In NSW, affray is the charge that covers group fighting below the threshold of a riot.

What is the difference between affray and assault?

The two offences protect different things. Common assault under section 61 is about harm, or the fear of harm, to a particular victim. Affray is about violent conduct that would frighten a hypothetical bystander. That difference has real consequences.

A person can be convicted of affray even though nobody was hurt, and even though the other people in the fight were willing participants who would never make a complaint. The offence does not depend on a victim coming forward. That is why affray is so useful to police after a group fight: everyone involved might refuse to give a statement, and the charge still stands on the footage alone. Common assault also carries a lower maximum of 2 years, against affray's 10, which is one reason a fight that might have been a common assault is sometimes charged as an affray instead.

Can affray be committed in private?

Yes. Section 93C(4) says affray may be committed in private as well as in public places. The name suggests a public brawl, but a violent fight inside a house, a unit, or a licensed venue can be an affray. This matters in family and domestic settings, where a fight in a home can attract an affray charge on top of any assault or apprehended violence order matter.

Because the bystander is hypothetical, the fact that the fight happened behind closed doors, with no one else there, does not answer the charge. The question is still whether the conduct would have frightened a person of reasonable firmness.

What are the defences to an affray charge?

The first is identification. In a group fight the Crown has to prove that this accused was one of the people using or threatening violence, not just present in the crowd. Standing nearby, or being caught up in a scene, is not affray. Where the footage is unclear and the accounts conflict, the case can turn on whether the person in the dock can be placed in the violence at all.

The second is self-defence. Section 418 of the Crimes Act 1900 is a complete defence where the person believed their conduct was necessary to defend themselves or another, and what they did was a reasonable response to the circumstances as they perceived them. A person set upon by a group and fighting their way out is not always the aggressor, and once self-defence is raised the Crown has to disprove it beyond reasonable doubt.

Then there are the defences that come from the section itself. That any threat was made by words alone, which is not enough. That the conduct would not have caused a person of reasonable firmness to fear for their safety, which can arise where the incident was brief or minor. And that the mental element in section 93D is not made out, because the accused did not intend violence and was not aware their conduct might be violent. Where a weapon is not involved and the exposure sits in the Local Court, an early and well-prepared plea, with genuine plea in mitigation, is often the path that keeps a person out of custody.

What we do for clients charged with affray.

Start with the evidence. An affray case lives or dies on footage and identification, so the first job is to get the CCTV, the body-worn video, and any phone recordings, and to work out whether the Crown can actually place the client in the violence. Young people are often caught up in these matters after a night out, and the difference between a participant and a bystander can be a single frame of video.

Then jurisdiction. Because affray is a Table 1 offence, keeping it in the Local Court, where the exposure is capped at 2 years, is worth fighting for early, and the decision to elect or not is one to make with advice rather than by default. Bail is often the first problem where the fight was serious or a weapon was used, and our note on show cause bail sets out what has to be established. If police have just charged you or a family member, our guide to the first thirty days covers the steps that matter, the first of which is to say nothing to police until you have spoken to a lawyer. Our page on the affray charge in NSW works through the elements and the penalties in more detail.

Frequently asked.

What is affray in NSW?

Affray is a public order offence under section 93C of the Crimes Act 1900 (NSW). A person is guilty of affray if they use or threaten unlawful violence towards another, and their conduct is such as would cause a person of reasonable firmness present at the scene to fear for their personal safety. A threat cannot be made by words alone. It is most often charged after a street fight, a brawl outside a pub, or a group attack.

What is the maximum penalty for affray in NSW?

The maximum penalty for affray is 10 years imprisonment when the matter is dealt with on indictment in the District Court. Affray is a Table 1 offence, so it is usually kept in the Local Court unless the prosecution or the accused elects to take it to the District Court. In the Local Court the most the court can impose for a single offence is 2 years.

What is the difference between affray and riot in NSW?

Affray under section 93C can be committed by a single person and needs no shared purpose. Riot under section 93B needs 12 or more people present together who use or threaten unlawful violence for a common purpose, and it carries a higher maximum of 15 years. Most group violence in NSW is charged as affray, not riot, because the numbers and the common purpose that riot requires are hard to prove.

What is the difference between affray and assault?

Assault is about harm or the fear of harm to a particular victim. Affray is about violent conduct that would frighten a hypothetical bystander of reasonable firmness. A person can be guilty of affray even if nobody was actually injured and even if the other people involved were willing participants, because the offence protects public order rather than a single complainant.

Can affray be committed in private?

Yes. Section 93C(4) of the Crimes Act 1900 says affray may be committed in private as well as in public places. A brawl inside a home or a licensed venue can be an affray. No member of the public needs to have actually seen it. The test asks how a person of reasonable firmness would have reacted, and that person is hypothetical.

Do you go to jail for affray?

Not always. Affray carries a maximum of 10 years, and full-time custody is a real risk where weapons were used, the violence was sustained, or the person has prior convictions. But many affray matters are dealt with in the Local Court, and a first offender with strong subjective circumstances can receive a lesser penalty, including a good behaviour bond or a community-based order. The outcome turns on the seriousness of the conduct and the person's history.

What are the defences to affray?

Self-defence under section 418 of the Crimes Act 1900 is a complete defence if the person acted to defend themselves or another and the response was reasonable. Identification is often the real issue in a group fight, because the Crown has to prove the accused was one of the people using or threatening violence. Other defences include that the conduct would not have frightened a person of reasonable firmness, that any threat was made by words alone, and that the mental element under section 93D is not made out.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 26 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

Sources: Crimes Act 1900 (NSW), ss 93B, 93C, 93D (Part 3A) · Criminal Procedure Act 1986 (NSW), Schedule 1 Table 1 · Judicial Commission of NSW, Sentencing Bench Book, Affray · Affray authorities on JADE · NSW Police News, King Street Newtown affray charge, 26 July 2026

← Back to all news

Related.

• Affray in NSW, section 93C
• Common assault in NSW
• Self-defence, section 418
• Glassing attacks, bail and juveniles
• Wounding with intent, section 33