Affray

An affray consists of the use or threatened use of violence of one of more persons in a public place or private place, causing a person of reasonable firmness to be terrified.

Affray is commonly charged where a fight has occurred involving multiple people in a public place. However, conduct by one person alone can be sufficient to constitute affray (Taylor v DPP [1973] AC 964).

You do not have to physically assault someone to be charged with affray. The charge will be sufficiently proven if your involvement was likely to or did leave the reasonable person in fear of their safety. 

In 2017, the common law offence of affray was abolished and replaced with the statutory offence under section 195H of the Crimes Act 1958.

Have you been accused of affray? 

Affray
Police Interview

You should get legal advice from our expert affray lawyer before you attend a Police interview for Affray. If you are arrested before you are able to speak with us, tell the Police that you need to speak to your lawyer and we can give you confidential advice over the phone or possibly meet you at the Police station. The Police will interview you with the hope of getting admissions from you regarding the offending and to strengthen their case against you. It is a very rare that anything you say will help your case. The Police are trained in interrogation and in phrasing questions in a way that they can use in Court later to show you are a liar or have inconsistencies in your version.

The Police will normally have already investigated the crime and will have material they will not tell you about.

Pleading Not Guilty

If you want to contest your charges of Affray, you should contact us as soon as you are charged. We can look through your brief and identify gaps in the Prosecution case that you might not see. We can advise you of possible defences to the charges. We are proactive in our approach and will search for material the Police may have over-looked.

Pleading Guilty

The Magistrate hearing your case has a wide variety of sentencing options with which they can punish you for Affray. Our specialist affray lawyer are criminal law experts. They can explain to the court the unique circumstances of your offending and your personal circumstances so that the Court is aware of who they are sentencing not just what they have done. We can direct you to offence-specific courses to ensure that you receive the fairest sentence possible and get on with your life.

Defences

Even if the meaning of affray is satisfied, there are defences recognised by the court that can be used to fight this charge. 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 also used by an expert affray lawyer are mistaken identity or that the prosecution case is not strong enough to make out each of the elements of the offence. The prosecution must prove the 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.

Sentencing

The maximum penalty for affray is level 6 imprisonment (5 years) or imprisonment of 7 years if the accused was wearing a face covering used primarily to:

  • conceal their identity; or
  • protect themselves from the effects of a crowd controlling substance.

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.

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 specialist affray 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.

Sentencing in the higher courts of Victoria

Sentencing Statistics Pie Chart for Affray in the Higher Courts of Victoria between 2017 and 2022

Sentencing in the Magistrates’ Court of Victoria

Sentencing Statistics Pie Chart for Affray in the Magistrates' Court of Victoria between 2018 and 2021

Elements of the offence – The meaning of Affray

To prove a charge of Affray, the prosecution must show that the accused has used or threatened “unlawful violence” in such a way that a person present at the scene would have been terrified. To enumerate the elements of this offence:

  1. The accused must have used or threatened unlawful violence.
  2. The use or threat of violence must have been in such a way that a person of reasonable firmness present at the scene will have been terrified.
  3. The accused must have intended to use or threaten violence or they must have been reckless as to whether their conduct involved the use or threat of violence.

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.

Check out some of the criminal cases our specialist affray lawyer has defended in court: