– Common Law

Affray is an offence that involves unlawful fighting, violence or a display of force by at least one person against one or more people. This meaning of affray makes it a charge that gets typically laid in situations where a person is involved in a fight or brawl in a public place.

This offence is a common law offence, which means it can not be found in legislation. The law that surrounds this offence comes from case law, sometimes referred to as judge made law.

Even if the meaning of affray is satisfied through the presence of the elements cited above, there are defences recognised by the court that may be used to fight this offence. Often a defence to this charge is that there is a factual dispute about what happened or, depending on the circumstances, that the accused has a claim of self-defence. For self-defence to be raised, it needs to be in the context of duress or necessity. Raising this defence will also invite questions relating to the proportionality of the accused’s response in the particular circumstances.

General defences may also apply such as mistaken identity or that the prosecution case is not strong enough to make out each of the elements of the offence so as to satisfy the legal meaning of affray beyond reasonable doubt.
Jurisdictional Limits
Affray by legal definition is an indictable offence, which means that it is triable by a judge and jury in the County or Supreme Court. The maximum penalty for this offence is level 6 imprisonment (5 years) and/or 600 penalty units.

However, this offence may also be heard summarily in the Magistrates’ Court if:

  • The Magistrate considers it appropriate to be dealt with summarily; and
  • The accused consents to having the charge determined summarily.
The seriousness of the circumstances surrounding the charge will determine in which Court the matter is heard. Generally speaking, a stand-alone charge of affray is heard in the Magistrates’ Court. More aggravated instances of violence which may also attract other charges, such as intentionally causing injury, are more likely to be heard in the higher courts.

Ultimately, it is the individual circumstances surrounding the charge, and also whether you are pleading guilty or not guilty, that will determine which court is the most appropriate.

There is a broad spectrum of offending which can attract a charge of affray. Therefore, sentences imposed by courts can vary enormously, depending on the seriousness of the offence. The sentencing Magistrate or Judge will commonly consider:

  • the level of planning involved;
  • the location of the affray;
  • the level of participation of the accused;
  • the length of the incident;
  • whether weapons were used;
  • the extent of any injuries or other damage that arose out of the incident;
  • the impact on victims.
Recent case law in DPP v Russell [2014] VSCA 308 has confirmed that affray is seen by the Court’s as a collective offence, and that individual participants can be held legally responsible for the potentially more serious actions of other participants, even if their own role was limited. However, typically, the instigator will be treated more severely than other participants.

As a common law offence, all sentencing options are available, from the opportunity to participate in a diversion program to an immediate term of imprisonment, and everything in between. For this reason, a criminal defence lawyer needs to assess all of the circumstances of your matter and how they relate to the legal definition of affray to be able to advise of the likely sentencing outcome.
Elements of the offence – The meaning of Affray
To prove the charge of affray, the prosecution must show that the accused was ‘involved in the unlawful use of force in such circumstances that a bystander of reasonable firmness and courage might reasonably expect to be terrified’.

To break it down, this charge has the following three elements, each of which the prosecution must prove beyond reasonable doubt to satisfy the meaning of affray:

  1. Accused was involved in the use of force;
  2. The use of force was unlawful;
  3. It occurred in circumstances where a bystander of reasonable firmness and courage might reasonably expect to be terrified.
The prosecution need not prove for an affray that a bystander was present when the incident broke out. The evidence will determine whether if an innocent person was present, they would have been afraid. Often CCTV footage (where available) is used to assist the Court in making this assessment.

It is also important to note that an affray can take place in either a public or private place. For example, a fight may break out between two people in a person’s private home. All of the available evidence needs to be assessed to decide what took place, and whether each of the above elements can be satisfied beyond reasonable doubt.
Sentencing in the Magistrates’ Court
As of 16 January 2012, the Magistrates’ Court can no longer impose community based orders, intensive corrections orders, combined custody and treatment orders or home detention orders. Likewise, for offences committed on or after 1 September 2014, the Court can no longer impose a suspended sentence.

Despite affray having a maximum penalty of 5 years imprisonment, the maximum term of imprisonment that a Magistrate can impose for a single offence is two years. Where a charge of affray is accompanied by other charges, the maximum aggregate (total) sentence that can be ordered for numerous offences in the Magistrates’ Court is five years.

It is important to speak to an experienced criminal defence lawyer who will be able to advise on current sentencing practices for affray in the Magistrates’ Court and the likely sentencing outcome taking into account all the particular circumstances of your case. How your circumstances fit the meaning of affray will largely determine the type and severity of the sentence to be imposed.

Sentencing outcomes in the higher courts
The Sentencing Advisory Council has released sentencing statistics for the sentencing of affray in the County and Supreme Court over a 5 year period between 2008 – 2013. During this period, 134 people were sentenced for this offence. 25% of people sentenced received a wholly suspended period of imprisonment, 25% received a community based order, 13% received a fine and 10% received an immediate term of imprisonment. The median term of imprisonment imposed for affray over this period was 12 months.

Please note, suspended sentences were removed in the higher courts for serious and significant offences committed on or after 1 May 2011. Soon after, suspended sentences were removed as a sentencing option in the higher courts for all offences committed on or after 1 September 2013.

Furthermore, community based orders were only available as a sentencing option until January 2012 and have now been replaced with community correction orders.