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Affray is a charge often preferred by police and prosecutors when they believe they are unable to prove an assault. The charge is made out if a court decides that the conduct of the alleged offender was such as to leave a reasonable person in fear of his or her own safety.

An offence such as affray can result in a sentence that includes imprisonment, even where an individual has no previous convictions. It is important to get legal advice at an early stage to ascertain precisely what the consequences of a conviction may be and whether you have a defence. It is very important that you obtain legal advice before you take part in any police record of interview.

Like assault, affray carries a maximum penalty of two years’ imprisonment.

The Offence Of Affray

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.

Maximum penalty: imprisonment for 2 years.

For subsection (1) (b), the violence, or the threat of violence, must involve more than words.”

According to Section 13 of the Criminal Code 2002 (ACT), “engage in conduct” means to do an act or to omit to do an act.

What Actions Might Constitute Affray?

Common examples of Affray include:

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

It is important to remember that there may be consequences other than the penalty imposed by the court. A criminal conviction is serious and can have far-reaching consequences, particularly on what you do for a living. A criminal history can prevent you from working with children, in a hospital, in a bank, at a casino or as a security guard. Potential employers are also more likely to employ a person without any convictions over someone who has even a minor criminal conviction. A criminal conviction can also make it difficult to obtain visas for overseas travel.

However, depending on the circumstances of each case, it is sometimes possible to negotiate with the prosecution with a view to an affray charge (maximum penalty two years’ jail) being replaced with a charge of Fighting In a Public Place, which carries no jail term and a maximum penalty of a fine of $1000.

What The Police Must Prove

To find a person guilty of affray, the police must prove each element of the offence beyond a reasonable doubt:

  • that the accused committed that act;
  • that they engaged in the relevant conduct;
  • that the conduct was violent or involved the threat of violence;
  • that it was directed towards another person;
  • that a reasonable person in the same situation would fear for his or her safety as a result of that conduct.

Possible Defences For Affray

A person charged with affray can argue in their defence that:

  • they did not use or threaten to use violence;
  • that a person of reasonable firmness would not have feared for their personal safety because of the accused’s conduct.

Which Court Will Hear Your Matter?

As affray carries a maximum penalty of two years, it is a summary matter, meaning it will be determined in the ACT Magistrates Court. The situation in NSW, where affray carries a 10-year maximum penalty, is different. You should advise your lawyer exactly about where and with what you have been charged.

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

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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