Diversion for Affray

This is a case study on affray at the Melbourne Magistrates’ Court, where diversion was granted after CCTV footage showed the client had not been the instigator of the altercation.

What is alleged to have occured?

Our client was a 28-year old male who had gone out for a night of celebrations with his cousins and wife. The group attended a fast food venue in St Kilda at around midnight. There were another group of males and females who attended at the same time, not known to our client. A verbal altercation took place with one male from our client’s family and one male from the other group. This subsided and both groups took to their tables to enjoy their meals.

After a short while, the other group began throwing boxes at our client’s table. One of the boxes hit our client’s cousin. A physical altercation then erupted. Our client got to his feet and put his arms out to protect the women from the other group so that they would not bear the wrath of a flying punch. He also pulled back some of the males to try to prevent the altercation.

There was CCTV footage obtained by our client which evidenced this behaviour. The fight (affray) became quite out of hand and both groups ended up outside of the venue. Our client did ultimately throw 3 punches in the heat of the moment. This was also captured on CCTV footage. However, he was not the instigator nor the most seriously involved. Our client was the only person charged out of both groups. He was told that this was because he exercised his right to silence during his interview.

What happened at court?

Dee Giannopoulos represented the client at the Melbourne Magistrates’ Court on the charge of Affray.

The matter went before the court as a contest mention. We requested for the Magistrate to watch the footage and gave advice that no one else had been charged out of the whole incident. We submitted that a diversion would be the most appropriate outcome, whereby our client would admit responsibility for the part of the night where he was not acting in a way to prevent the altercation – where he threw the 3 punches. The sentence would however reflect the fact that no other person was charged.

What was the result?

His Honour agreed that this was the most appropriate penalty. Our client was granted a diversion for the Affray charge and will not have a criminal record for this matter.

Elements of Affray:

• Accused was involved in the use of force;
• The use of force was unlawful;
• It occurred in circumstances where a bystander of reasonable firmness and courage might reasonably expect to be terrified.