What is the offence of Affray in Victoria?
Updated: Sep 21, 2022
The offence of Affray often arises in the context of public violence perpetrated by multiple persons (sometimes rival gangs). The offence involves a prohibition against both unlawful violence and a breach of public order. What follows is an overview of the offence of Affray.
The topics covered in this article include:
Discussion regarding the elements of the offence;
What is the law relating to Affray?
The offence of Affray is indictable and is prosecuted under section 195H of the Crimes Act 1958 (Vic). In charging a person with Affray, the prosecution must prove several elements beyond a reasonable doubt.
Other charges may also accompany an allegation of Affray
Often other assault related offences will be charged as alternative offences to Affray. As the circumstances of alleged offending inevitably involve violence.
Where the offence occurs in a public place, an alternative offence of behave in a riotous manner (section 17(1)(d) of the Summary Offences Act 1966 (Vic) may be used charged as an alternative offence.
What the prosecution must prove for the offence of Affray
The elements of the offence that the prosecution must prove beyond reasonable doubt are:
- A person intentionally or recklessly uses or threatens unlawful violence;
- the use or threatened use of unlawful violence causes a person of reasonable firmness present at the scene;
- to be terrified
The term 'unlawful violence' is not defined under the Crimes Act, however, section 195(3) provides that "a threat of unlawful violence must involve more than words alone".
causing a person of 'reasonable firmness to be 'terrified'
Whether the prosecution establishes these elements will turn on whether the unlawful violence could cause a hypothetical person to fear for their safety (I v Director of Public Prosecutions  1 AC 285).
The case of Paisley v. R  VSCA 79 establishes that it is not necessary for the prosecution to prove that the conduct of an accused did in fact terrify a bystander (although this would of course be relevant) but that the conduct was capable of terrifying a bystander of reasonable firmness.
Although the term 'reasonable firmness' is not defined under the Crimes Act. The word 'terrified
in the context of affray was defined in R v Taylor  to amount to a state of agitation more severe than "nervous" or 'frightened'.
What is the penalty for Affray in Victoria?
The maximum penalty for Affray is 5 years (section 195H(1)(a). However, where an accused commits the offence of Affray and uses a disguise, the maximum penalty is 7 years (section 195H(1)(b).
Defences to Affray
The facts underpinning any allegation of affray will vary from case to case As discussed above the prosecution must prove beyond reasonable doubt each and every element of the offence. Consequently, a defence may arise on the basis of a factual dispute as to whether the evidence establishes any of the elements:
- no intention to use or threaten violence;
- the conduct was not of such concern that it would objectively cause a bystander to be terrified
Depending upon the facts, further defences may be available:
Which Court Can Hear and Determine the Offence of Affray?
As per Part 3.1 of the Criminal Procedure Act 2008 (Vic), an offence of Affray can be heard and determined in the Magistrates' Court.
That said, it is not uncommon for an offence of Affray to be accompanied by more serious offences, that might not be capable of being heard in the Magistrates' Court and must proceed to the County Court for hearing. An example of this is where an Affray also features an allegation of an assault causing serious injury.
What are the sentencing outcomes for Affray in the Magistrates' Court?
The seriousness of an Affray offence can vary greatly. Consequently, so do sentencing outcomes. The sentencing process takes many factors into account including factors personal to an accused (age, criminal history, health) and policy factors (whether an early plea of guilty, cooperation with police, etc).
As a general guide to the sentencing outcomes for this offence when heard int eh Magistrates' Court, the Sentencing Advisory Council published some data for the period of 1 July 2016 - 30 June 2019:
Imprisonment - 26.5%
Fine - 24.5%
Require advice, or representation to respond to a charge of Affray?
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