This article was written by Michelle Makela - Legal Practice Director
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...
Affray
Affray is a charge which attracts a maximum penalty of 1 year imprisonment, unless the person who is convicted is a member of a criminal organisation in which case the maximum penalty rises to 7 years imprisonment with a component of mandatory custody.
Affray is a misdemeanour offence, but it can still result in sentences of imprisonment if the circumstances are grave enough. Often, though, alternative sentences are imposed.
Affray differs from assault in that a person can commit the offence even if the other people involved in the melee are willing participants. Often, affray might be committed even if the fight was a semi-organised event.
The Offence Of Affray
Section 72(1) of the Criminal Code Act 1899 creates the offence and reads:
“Any person who takes part in a fight in a public place, or takes part in a fight of such a nature as to alarm the public in any other place to which the public have access, commits a misdemeanour”.
The key ingredient in affray is the effect a fight has, or would reasonably be expected to have, on the general public in a place. It does not ultimately matter if the fight is organised or if it is impromptu or whether the fight is between groups or two individuals. It is not even necessary that physical violence be used in the fight.
Affray is often a back-up, or alternative, charge to more serious offences such as riot or homicide. This means that, sometimes, people are acquitted in court of a more serious offence but convicted of affray.
What Actions Might Constitute Affray?
Affray might be committed where a person is part of a physical confrontation in a public place which causes fear or alarm to people in that place.
Examples include:
- 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 one another;
- A fight between two patrons in a pub, which causes fear to other patrons.
Will I Get A Criminal Conviction For Affray?
It is likely that a criminal conviction will be recorded against your name if you are found guilty of affray, though this is not inevitable. If you have been charged with affray, it is important that you obtain legal advice and/or representation at an early stage in order to maximise your opportunity to avoid a criminal conviction.
What The Police Must Prove
To convict you of affray, the prosecution must prove beyond a reasonable doubt that:
- you took part in a fight or used force with another;
- the fight or use of force occurred in a public place;
- a member of the public was present;
- the fight or use of force could reasonably cause the public to be frightened or intimidated.
Which Court Will Hear Your Matter?
Affray will normally be heard in the Magistrates Court but it is not unusual for it to be determined by a higher court, even the Supreme Court, if a person is convicted of it as an alternative to a more serious offence.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.