What is Affray?
A person who uses or threatens unlawful violence towards another person and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, is guilty of affray and liable to imprisonment for 10 years – however 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.
How can an Affray charge be used inappropriately?
Affray is an increasingly popular charge used by police, often inappropriately, in circumstances where a charge of assault or offensive conduct might suffice, or perhaps to unfairly invoke the harsh bail provisions.
We have defended many matters where 2 or more persons involved in a fight have been 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; that a threat cannot be made by the use of words alone; that if 2 or more persons use unlawful conduct, it is their conduct taken together for the purpose of determining whether or not an offence has been committed. The offence can be committed in public or private places.
What is Riot?
Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 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.