Affray Charges In Victoria
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What is Affray?
Prior to 2017, affray was a common law offence if an accused person engaged in unlawful violence that made a reasonable person witnessing it conclude that such conduct was of a frightening or threatening nature during a face-to-face confrontation.
Affray is a serious offence provided for pursuant to section 195H of the Crimes Act 1958 (CA). Affray is defined as a person using or threatening to use unlawful violence (in a public/private space) and this conduct would make a reasonable person witnessing it to feel frightened.
If a group of people were involved in a violent act and it is difficult for police to pinpoint specific actions of individuals, police will usually charge the person with affray (even if their role was limited). Conduct by one person is sufficient to amount to an affray. If police are unable to prove an accused person committed a more serious assault, the alternative charge is usually affray (in combination with assault).
Police Interview
Questions To Consider Before Pleading Guilty or Not Guilty
If you are suspected of committing the offence of affray by police, the normal course of action would be the conducting of a formal police interview that is recorded for the purpose of gathering evidence. At this stage, police would have investigated the offence and may have a range of evidence against you that they will not inform you about.
Before the interview, you are given the option to contact a lawyer for legal advice/support/representation. We can provide you with confidential legal advice that addresses all your concerns, like whether you should make a comment to police, whether you need to undergo any DNA testing or whether you are likely to be charged.
Questions To Consider Before Pleading Guilty or Not Guilty
To determine whether you have a good prospect of success in defending your affray case, it is important to weigh up the following points:
- Should I plead guilty/not guilty?
- Was I involved in a fight?
- Did the fight involve the unjustified use of violence/force?
- Were bystanders at the scene?
- Applying an objective test, would a reasonable person in the position of a bystander been frightened?
- What options are available to minimise any penalty imposed by a court?
- Can a defence be relied on to argue your innocence?
These are all questions our Lawyers are here to help answer and prepare you for a strong defence.
What to Consider/Needs to be Established?
To determine whether you can succeed against any police allegations of an affray, it is important to consider what constitutes an affray. In other words, can the prosecution establish beyond reasonable doubt that:
- You used or threatened unlawful violence.
- Unlawful violence has no definition in the CA, but “engaging in unlawful fighting with another person” is accepted as unlawful violence (s 195H(1) CA)
- Words alone is not unlawful violence (s 195H(3) CA)
- Verbal threats of unlawful violence in the present of a dangerous weapon/instrument is capable of amounting to unlawful violence.
- A witness need not be present when the use or threatened use of violence was given (often in cases where CCTV footage is included in the brief of evidence)
- Your conduct was intentional or reckless?
- You intended/threatened to use violence or were reckless as to whether your actions intended/threatened to use violence, knowing that unlawful violence would likely result but you continued anyway (s 195H(2) CA.
- Your unlawful violence would make a reasonable person of average aptitude witnessing it to feel frightened.
- To feel frightened means feeling more emotion than nervousness or worry
- If two or more people use or threaten unlawful violence, the combined conduct needs to be considered, regardless of whether it occurred simultaneously (s 195H(5) CA))
- A reasonable person of average aptitude need not witness the conduct (s 196H(4)(b) CA)
Where will my matter be heard?
Affray is an indictable offence that is usually dealt with in the Magistrates Courts of Victoria. If the circumstances of the offending are aggravated in any way, the matter may be uplifted to the County Court.
Defences
If you are pleading not guilty, the possible defences you may have available will depend on the circumstances surrounding the alleged offending. Defences may include:
- Self-defence – there is factual dispute about the real facts to the case (what happened)
- Was this in the context of duress/necessity?
- Was your response proportionate in the circumstances?
- Mistaken identity – you were unlawfully accused of the affray (because it was someone else)
Arguing a defence to an affray can often be challenging. Our criminal lawyers can review your case and determine whether there is a valid defence to the charge based on the evidence.
Penalties
Affray is a level 6 offence and the Courts take matters of affray very seriously.
If you are found guilty of an affray, the maximum penalties may include:
- A maximum term of 5 years imprisonment (maximum 7 years if the affray occurred under certain circumstances, like wearing a face mask to conceal your identity or safeguard the effects from a crowd-controlling substance)
- A community corrections order (with or without conviction)
- A fine (conviction or non-conviction)
- A diversion (in rare circumstances)
- A promise (to the Court to be of good behaviour)
Considerations During Sentencing
The Sentencing Act requires the Courts to consider a range of factors when determining the most appropriate penalty for the offence of affray. These include:
- The nature/gravity of the offending.
- Facts surrounding the offence.
- Whether the offence has a mandatory (or standard) sentence.
- The level of planning involved.
- The length of time the incident occurred over.
- Whether any weapons or instruments were used.
- Whether any injuries or property damage was caused.
- The location of the affray.
- The impact the offending may have had on the victim.
An accused person who has a relevant criminal history and/or who commits the cruellest aggravates example of an affray is likely to receive the harshest penalties.
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Contact Us
MK Law criminal lawyers have the knowledge and expertise to represent you for the best legal outcome possible according to law for the offence of affray. If you have been suspected of or charged with the offence of affray, call MK Law today on 1800 130 120.
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