Unlawful Assembly

– Common Law
GangThis charge is generally laid in situations where a person, who is one of at least three persons, is assembled with a common purpose of committing or preparing to commit a crime using violence or some other unlawful purpose to endanger the public peace.1

Common law used to recognise the offences of unlawful assembly, rout and riot as escalating level of offending involving a collective decision to commit unlawful acts. On 13 September 2017 the offences of rout and riot were abolished at common law and replaced with the new statutory offence of ‘violent disorder’.2 The common law offence of unlawful assembly remains.

Examples of Unlawful Assembly
  • Dozens of people gather together to engage in a protest against people of a certain ethnicity. During the protest, they shout aggressive slogans and threaten violence.
  • A large group of people gather together with an agreed purpose of unlawfully defacing a public monument.
  • A large group of people meet with a common purpose of unlawfully damaging a person’s house.
Questions in cases like this
  • Have three or more people gathered together?
  • Have the people gathered with a common purpose?
  • Is the common purpose committing a crime using violence or some other unlawful purpose?
What are some of the possible defences to Unlawful Assembly?

Defences are ordinarily based on an element of the offence not being made out. These defences include:

  • Less than three people are gathered together;
  • The people gathered together do not have a common purpose; and
  • The people gathered do not have a common purpose of committing a crime using violence or some other unlawful purpose.

Other defences to this charge include duress,3 factual dispute, honest and reasonable mistake of belief, wrongful identification or mental impairment.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal defence lawyer.

Maximum penalty and court that deals with this charge

Magistrates' CourtUnlawful assembly has a maximum penalty of 5 years imprisonment.4

The offence of unlawful assembly is ordinarily heard in the Magistrates’ Court.

What is the legal definition of Unlawful Assembly?

Unlawful assembly is a common law offence and is not defined in legislation.

In R v Jones (1974) 59 Cr App R 120 (CA) James LJ said:

“The ingredients of [unlawful assembly] are (i) the [act] of being or coming together – the assembly, and (ii) the [mental element] involved in the intention of fulfilling a common purpose in such a manner as to endanger the public peace. Those ingredients have to be co-existent.”
 
Legislation

This is a common law offence. It exists due to case law and is not written in any piece of legislation.

Elements of the offence

In order for a person to be found guilty of this offence, the prosecution must prove the following two elements:

  1. Three or more people have gathered together; and
  2. The gathered people have a common purpose to act in an unlawful manner so as to endanger the public peace.

Element 1: Three or more people are gathered together
To satisfy the first element of this offence, the prosecution must prove that three or more people have gathered together.

Element 2: The gathered people have a common purpose to act in an unlawful manner so as to endanger the public peace
To prove the second element of this offence, the prosecution must establish that the people gathered together have a common purpose to act in an unlawful manner that would endanger the public peace.

The gathered people may have demonstrated a common purpose by advertising it on a public Facebook page or other social media, verbally articulating it at a rally or other gathering or in some other way. The common purpose could also be demonstrated by attempting to engage in a course of action.

The common purpose must be to act in an unlawful manner so as to endanger the public peace. This may mean acting violently or intending to damage property. The unlawful common purpose must also endanger the public peace. It is more likely that that this element of the offence will be made out if the assembly occurs in a public place and at a time when members of the public are present.

“Can they prove that you had a common purpose?”

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Other important resources
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[1] Black v Corkery (1988) 33 A Crim R 134, 139
[2] Crimes Act 1958 (Vic) s 195I
[3] Crimes Act 1958 (Vic) s 322O
[4] Crimes Act 1958 (Vic) s 320