Affray

In the ACT, the offence of Affray is contained in section 35A of the Crimes Act 1900 (ACT). A person can be charged with Affray if they engage in, or threaten to engage in, violent conduct that is likely to cause another person to fear for their safety. 

There are different maximum penalties for a person who is found guilty of an offence of Affray. The maximum penalty depends on the number of other people also alleged to have engaged in violent conduct. 

The maximum penalties include:

• If 1 person commits an offence: 2 years imprisonment; 
• If 2 or more people are also present: 5 years imprisonment; or 
• If 5 or more people are also present: 10 years imprisonment. 

What is ‘Affray’?

Affray is a charge where a person, or persons, are alleged to have engaged in, or threatened, to engage in, violence towards another person and that act is likely to cause a reasonable person to fear for their safety. 

Section 35A of the Crimes Act 1900 (ACT) states:

A person commits an offence if:

• the person engages in conduct; and
• the conduct is violence or the threat of violence; and
• the violence or threat is directed towards someone else; and
• the violence or threat would be likely to cause a reasonable person to fear for his or her safety.

The following acts may constitute an Affray:

• getting into a fight in front of one or more people;
• yelling and/or threatening to punch someone;
• road rage; or
• participating in a riot.

What Must Be Proven?

For a person to be found guilty of an Affray the Prosecution must prove each of the following matters beyond a reasonable doubt: 

• that you engaged in conduct; and
• the conduct is violence or the threat of violence; and 
• the violence or threat is directed towards someone else; and
• the violence or threat of violence would be likely to cause a reasonable person to fear for his or her safety. 

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

To be found guilty of one of the more serious Affray offences, the Prosecution are also required to prove (in addition to the above) that there were 2 or more people also present and engaging in conduct that is violence or the threat of violence (5 year maximum penalty) or 5 or more other people present are also engaging in conduct that is violence, or the threat of violence (10 year maximum penalty). 

If you are charged with the more serious Affray charges (where it is alleged 2 or more, or 5 or more people, were also present) and the Court is not satisfied that anyone else was involved, you can still be found guilty of the less serious charge of Affray that carries a 2-year maximum penalty. 

Which Court Will Hear The Matter?

Depending on which type of Affray offence you are charged with, it will mean that your matter can either be dealt with in the Magistrates Court or Supreme Court. 

For an Affray offence that carries a maximum penalty of 2 years imprisonment, it is a summary only offence. This means that it will be dealt with in the Magistrates Court. 

For an Affray offence that carries a maximum penalty of either 5 years or10 years imprisonment, these are both indictment offences, this means that it will be dealt with in the Supreme Court, unless you consent to summary jurisdiction, which means that the matter will be dealt with in Magistrates Court. 

Possible Defences to Affray

The following defences may be available for an Affray charge:

• they did not use or threaten to use violence;
• a reasonable person would not have feared for their personal safety; 
• the violence, or threat of violence, was carried out in self-defence. 

Common questions about Affray

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In the ACT, a Court can impose any of the following penalties for an Affray charge:

• Full-time imprisonment;
• Intensive Corrections Order (ICO)
• Suspended Sentence 
• Community Service Order
• Good Behaviour Order
• Fine
• Non-conviction order (with or without conviction) 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for affray might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths, such as teaching, and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions. 

Will I go to Gaol for an Affray charge?

If you are found guilty of any Affray charge, it can result in a term of full-time imprisonment. It depends on a range of factors as to whether you will be sentenced to a term of imprisonment, however, you can be sentenced to a term of imprisonment. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.