Have you been charged with Affray?
Then you will need the services of an experienced criminal lawyer. Affray is a serious offence that carries a maximum penalty of 5 years in prison or 7 years in prison in circumstances where you are concealing your identity. Before telling the Court how you intend to plead, there are many questions to be considered.
Was there a fight in which there was an unjustified use of violence or force? Were you involved in the fight? Were there any bystanders? If so could it be said that on an objective standard, taking into account all the facts and circumstances of the case that someone in the bystanders shoes would have been terrified?
As a common law offence, the charge of Affray is not contained in the legislation although the maximum penalty in relation to the offence is contained under s320 of the Crimes Act. (Legislation update: The offence of Affray has now been codified by the introduction of The Crimes Legislation Amendment (Public Order) Act 2017. The act introduces section 195H to the Crimes Act. Under the Crimes Act 1958, affray is now also committed where a person uses or threatens unlawful violence and whose conduct would cause a person of reasonable firmness present at the scene to be terrified. This has had the effect of expanding the common law definition. Section 195H also introduces a 7 year maximum in circumstances where a defendant commits the offence of affray whilst concealing their identity. The balance of the offence mimics the common law, end of update)
The prosecution must prove:
there was a fight or an unlawful use of violence or force;
the defendant was involved in the fight or use of violence or force (for example by brandishing an offensive weapon); and
the fighting or use of violence or force was such that a bystander of reasonable firmness and courage might reasonably be expected to be terrified.
The maximum penalty
Level 6 imprisonment being a maximum of 5 years or 7 years in circumstances where you are concealing your identity.
Where will my case be heard?
Affray cases used to only be heard in the County Court of Victoria, as they were deemed too serious for the Magistrates’ Court. The legislation has now changed to allow Affray to be heard in the Magistrates’ Court as well. As a result, police have started using this very serious charge more regularly, often to the criticism of Magistrates.
Questions to consider
Do you have a defence? If you are pleading guilty, what can you do to minimise your sentence?
What to do next
Arrange a time to consult with a specialist criminal lawyer. As preparation is critical to the success of any matter, ensure that you allow plenty of time before your Court date.
If you have been charged with Affray contact us and make an appointment to see one of our experienced lawyers today.