Affray

Section 71 of the Queensland Criminal Code makes it an offence to take part in a fight in a public place or a place to which the public have access if the nature of the fight is of such a nature that it would cause alarm to the public. 

 The maximum penalty for the charge of Affray is 1 year imprisonment. 

What is Affray?

While Affray is primarily an offence of violence, it differs from the offence of assault in that a person can commit the offence even if the other people involved in the melee are willing participants.

It is immaterial whether the fight was organised in advance or happened in the spur of the moment. Impromptu.  While Affray is more commonly charged when a group of offenders are involved in a large brawl, at law, you can be charged with Affray even if you engaged in a fight with just one other person. This is because one of the main considerations for this offence is the effect the fight has, or would reasonably be expected to have, on the general public in that place.

Aggravated Affray

It is a circumstance of aggravation for this offence if the offender commits the offence in a public place while they were adversely affected by an intoxicating substance. 

If convicted of the offence with this circumstance of aggravation, the Court must make a community service order as a part of their sentence.

The following acts constitute Affray:

• Joining a violent brawl in a bar
• Attending a public group protest which escalates into violence, where a person is involved in the group violence
• An all-in brawl between rival supporters at a sporting event held in a public stadium
• Rival school groups meeting by arrangement in a public location to fight

What Must Be Proven?

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

• The person took part in a fight
• The fight was in a public place or a place the public has access to; and
• The fight was likely to alarm the public

If the Prosecution is unable to prove each of the above elements, the person should be found not guilty. 

Which Court Will Hear the Matter?

The charge of Affray is a misdemeanor and will usually be finalised in the Magistrates Court. 

Possible Defences to Affray

The following defences may be available for a charge of Affray:

• Self Defence
  • Where a person has used reasonable force to defend themselves, and the force they used was proportionate to the threat they were facing at the time.
• Duress
  • Where the person charged was forced to engage in the fight, under threat, or coercion

Will I go to jail or have a criminal record if I am convicted of this offence?

The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Which of the above sentencing options from the above list the Court will prefer for an offence of Affray will largely depend on the following matters, among other considerations:

•  the nature and seriousness of the melee
•  the extent of disruption/ fear it has caused 
•  whether significant injury has occurred; and
• The person’s criminal history, if they have any (particularly previous offences of violence)

If the melee was particularly large and disruptive, caused significant injury, or the person charged has criminal history in the past for engaging in the same or similarly violent and disruptive behaviour, the Court is more likely to consider imprisonment as the appropriate sentence for the charge.

In Queensland, any time the Court orders a term of imprisonment for an offence (even if the imprisonment is wholly suspended, or the person is granted immediate parole) the Court must record a conviction. This means the offence will appear on the person’s Court outcomes, and the person will have recorded criminal history. 

The consequences of a conviction being recorded for any type of offence can be serious if you have a job or type of employment where you need to have no prior criminal convictions. It may also jeopardise your employment and/or make it difficult to obtain visas for overseas travel.

If you are contacted by Police and they want to talk to you about a charge of Affray, or if you are charged with this offence or any other criminal matter, it’s important you receive good advice at the earliest opportunity and before speaking with Police or anyone else about the matter.  

Armstrong Legal provides expert legal advice and representation for offences of this nature. Contact Armstrong Legal now to arrange an obligation free consultation.