What is Affray?
The offence of affray occurs when:
- A person uses or threatens unlawful violence towards another person
- This causes a person of reasonable firmness present at the scene to fear for his or her personal safety
A person guilty of affray is liable to imprisonment for 10 years.
The matter can be dealt with in the Local Court or District Court. Most of these types of charges are completed in the Local Court where the potential penalties are substantially less.
What kinds of actions might constitute affray?
Common examples of Affray include:
- Getting into a fight in a public place such as a bar
- Road rage
- Taking part in a violent public demonstration
- Yelling and threatening someone with violence in a public space
These are all examples where other people present may reasonably fear for their safety.
What are possible defences to affray?
Possible defences to affray include:
- Self defence
- Necessity – arguing that your actions were necessary to prevent greater harm from occurring, e.g. defending somebody else
- Duress – where you are compelled to act in a certain way due to the circumstances, or the threats of another
What are the potential penalties for an affray charge?
The offence of affray can be punished with a prison sentence of up to 10 years. It is therefore essential to have a good criminal defence lawyer who can assist you in presenting the strongest case possible, and to potentially receive a section 10 with no criminal conviction recorded.
How can an Affray charge be used inappropriately?
We have defended many matters where 2 or more people involved in a fight were charged with affray, in circumstances where:
- The fight only involved those people
- There was no risk to others, and
- Heavily armed police stood and watched.
Would a person of reasonable firmness have anything to worry about in those circumstances? No way.
It is worth noting that:
- A person of reasonable firmness need not be present;
- A threat cannot be made by the use of words alone;
- If 2 or more persons use unlawful conduct, it is their conduct taken together in determining whether an offence has been committed.
- The offence can be committed in public or private places.
What is Riot?
Riot exists where:
- 12 or more persons who are present together use or threaten unlawful violence for a common purpose
- The collective conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety
Each person involved can be found guilty of riot and is liable to imprisonment, with a maximum penalty of 15 years.
What is Violent Disorder?
The offence of violent disorder involves 3 or more persons present together who use or threaten unlawful violence that would cause a person of reasonable firmness to fear for his or her safety. A maximum penalty of 6 months can be imposed but this would be rare.
Defences of Self-Defence, Necessity and Duress may be available.