Have you been charged with affray in Victoria?
If so, you will need the services of an experienced criminal lawyer. Affray is a serious offence with a maximum penalty of 5 years imprisonment or 7 years imprisonment if the offence was committed in certain circumstances, such as while concealing your identity. If the police can not make out a more serious assault charge, affray will often be the fallback position and will be charged in combination with assault.
Before telling the Court how you intend to plead to affray, there are many questions to be considered, such as:
- Was there a fight in which there was an unjustified use of violence or force?
- Were you involved in the fight?
- Were there any bystanders?
- If so, could it be said that on an objective standard, taking into account all the facts and circumstances of the case, someone in the bystander’s shoes would have been terrified?
What is affray?
Affray is a statutory offence under the Crimes Act 1958 s 195H. However, before the commencement of this provision in 2017, affray was a common law offence.
At common law, a person committed affray if they participated in unlawful violence of such a kind that it was calculated to cause any person of reasonable firmness who might witness it to be terrified (Attorney General’s Reference (No 3 of 1983) [1985] 1 All ER 501; DPP v Russell (2014) 44 VR 471).
Under s 195H of the Crimes Act 1958, a person commits affray where they use or threaten unlawful violence and their conduct would cause a person of reasonable firmness present at the scene to be terrified.
The meaning of affray is derived from the French word affrai, which means “disturbance”. It comes from the Latin root meaning “to take out of peace”.
Affray is commonly charged when there are a group of people involved in a brawl in a public place, and the police cannot determine the actions of all the parties involved. In this situation, police will often lay charges for affray.
Elements of affray
For an accused to be found guilty of affray, the prosecution must prove:
the accused used or threatened unlawful violence;
the accused’s conduct was intentional or reckless; and
- the accused’s conduct would cause a person of reasonable firmness present at the scene to be terrified.
Unlawful violence
Unlawful violence for affray is not defined in the Crimes Act 1958, but “engaging in unlawful fighting with another person” is identified as an example of unlawful violence (s 195H(1)).
Prosecutions for affray at common law offer other examples of unlawful violence, such as face-to-face confrontations using or threatening violence (I v Director of Public Prosecutions [2002] 1 AC 285) and one or more people shouting, struggling, threatening, waving weapons, throwing objects and exchanging and threatening to exchange blows (R v Smith [1997] 1 Cr App R 14).
While words alone are not sufficient to constitute a threat of unlawful violence (s195H(3)), a verbal threat of unlawful violence while brandishing a weapon may be sufficient (R v Dixon [1993] Crim LR 579).
Number of people involved
If conducted in a manner that might reasonably terrify a bystander, use or threatened use of unlawful violence by one person alone can constitute affray (Taylor v DPP [1973] AC 964). If two or more people use or threaten unlawful violence, it is the conduct taken together that must be considered, and it is immaterial whether or not they use or threaten unlawful violence simultaneously (s 195H(5)).
Intentional or reckless
The second element for affray is that the accused’s conduct was intentional or reckless. This means that the accused must have intended to use or threatened use of violence or was reckless as to whether their conduct involved the use of violence or threatened use of violence (s195H(2)).
Recklessness in this context means knowing that unlawful violence would probably result from their conduct but deciding to continue regardless (R v Crabbe (1985) 156 CLR 464).
Causing a person of reasonable firmness to be terrified
The final element for affray is that the accused’s conduct would cause a person of reasonable firmness present at the scene to be terrified.
This element is assessed according to whether the conduct would cause a hypothetical person of reasonable firmness to fear for their safety at the time of the accused’s conduct (R v Novakovic [2019] VSC 339). It is not necessary that a person of reasonable firmness was actually present (s195H(4)(b)).
The prosecution, therefore, only needs to prove that the use or threatened violence was capable of terrifying a bystander of reasonable firmness (Paisley v R [2012] VSCA 79). To be terrified, the bystander must be in a more agitated emotional state than being merely nervous or frightened (Paisley v R [2012] VSCA 79).
The maximum penalty for affray
The maximum penalty for affray is level 6 imprisonment (5 years maximum) or imprisonment for 7 years if, at the time of the offence, the accused wore a face covering used primarily to:
- conceal their identity; or
- to protect them from the effects of a crowd-controlling substance (s195H(1)).
Where will my case be heard?
Affray cases previously could only be heard in the County Court of Victoria, as they were deemed too serious for the Magistrates’ Court. However, the legislation has changed to allow affray to be heard in the Magistrates’ Court as well. As a result, police have started using this very serious charge more regularly, often with the criticism of Magistrates.
Questions to consider
Do you have a defence, such as the defence of self-defence? If you are pleading guilty, what can you do to minimise your sentence?
Recent affray cases at Dribbin & Brown Criminal Lawyers include the following:
What to do if you have been charged with affray
Arrange a time to consult with a specialist criminal lawyer. As preparation is critical to the success of any matter, ensure that you allow plenty of time before your court date.
If you have been charged with affray, contact us and make an appointment to see one of our experienced lawyers today.
