Affray - Charges, Penalties and Sentencing in Victoria

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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 is a serious common law offence which carries a maximum penalty of 5 years imprisonment, under section 320 of the Crimes Act 1958. Affray is a public disorder offence and is related to the offences of riot and violent disorder. Affray is an indictable offence which may be determined summarily (in the Magistrates Court.)

What is Affray?

Affray is a serious common law offence that is generally defined as the fighting of two or more persons in a public place that terrifies people of reasonable firmness and courage.

What Actions Might Constitute Affray?

A person may be charged with affray on the basis that they:

  • Got into a fight in front of one or more people;
  • Yelled and threatened to punch someone;
  • Engaged in road rage; or
  • Participated in a riot.

What the Police Must Prove

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

  • They used force or were somehow involved in the use of force;
  • That force was against a person or persons; and
  • A bystander of reasonable firmness and courage might reasonably be expected to be terrified by their use of force or involvement in the use of force.

Possible Defences to Affray

A person charged with this offence may defend the charge by arguing:

  • 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 conduct; or
  • That they used violence but were acting in self-defence;

Which Court Will Hear the Matter?

Affray is an indictable offence that can be heard in either the Magistrates’ Court or County Court depending on the seriousness of the circumstances and the attitude of defence and prosecution.

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