AFFRAY  & PUBLIC DISORDER

AFFRAY

​The offence of affray is different, and more serious, by comparison to the offences of common assault of assault occasioning actual bodily harm, which are offences against a single person. Affray is considered as an offence against the public order to protect the peace, and may be committed in a private or public place.

 

The conduct constituting the offence of affray must be more than mere words alone. Section 93C of the Crimes Act 1900 provides that affray is where a person uses or threatens to use unlawful violence towards another person, where the conduct itself would cause any third person (or bystander) of reasonable firmness present at the scene to fear personal safety. It should, however, be kept in mind that a third person or other bystander need not be present for a person engaged in a brawl or fight to be present.

 

If that person is found guilty of committing an affray, the maximum penalty is 10 years imprisonment (although it would be 2 years imprisonment if sentenced in the Local Court).

 

What are the elements of affray?

In order for you to be found guilty of an affray, the prosecution must prove the following elements beyond reasonable doubt:

• That you used, or threatened to use violence towards another person;

• That you intended to use or threaten to use violence;

• That your actions would cause a reasonable person to fear for their personal safety; and

• That you used or threatened to use violence towards another person without lawful excuse.

 

The prosecution would need to provide the Court with evidence in support of each of the above elements to prove your guilt. The standard of proof is high and each element must be proven beyond reasonable doubt.

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What are some defences to a charge of affray?

Some defences that may be raised for an affray include:

• Duress: If you were compelled to act in a certain way due to the circumstances, or the threats of another.

• Necessity: If your actions were necessary to prevent a greater harm from occurring.

• Self-Defence: If you were defending yourself or another OR yours or another’s property.

• Identity: If you are alleged to have participated in an affray as one person in a large group of people, it is possible that you may not be properly identified by the prosecution evidence and they have mistaken you for someone else.

• Alibi: If you were somewhere else at the time the alleged affray occurred, you may be able to raise evidence of your whereabouts as part of your defence.

• Argue that you did not use or threaten to use violence.

• Argue that your actions would not cause a person of reasonable firmness to fear for their safety.

 

 RIOT

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The offence of riot is another offence against public order.

 

Section 93B(1) of the Crimes Act 1900 provides that it is an offence to participate in a riot. A riot is where twelve (12) or more people threaten to use ‘unlawful violence’ for a ‘common purpose’, and their actions would cause an ordinary person to fear for their safety.

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The Court may draw inferences about common purpose from the conduct of the persons involved. Like the offence of affray, a riot can be committed in a public or private place, and there need not be a third person or bystander present.

 

What are the elements of the offence of riot?

The prosecution must prove the following elements beyond reasonable doubt before you can be found guilty of the offence of riot:

• You were present with twelve or more people;

• The group had a common purpose to use or threaten to use violence; and

• The group’s actions, taken together, would cause a person of reasonable firmness to fear for their safety.

 

What are some defences to the offence of riot?

• Duress: If you were compelled to act in a certain way due to the circumstances, or the threats of another.

• Necessity: If your actions were necessary to prevent a greater harm from occurring.

• Self-Defence: If you were defending yourself or another OR yours or another’s property.

• Identity: If you are alleged to have participated in an affray as one person in a large group of people, it is possible that you may not be properly identified by the prosecution evidence and they have mistaken you for someone else.

• Alibi: If you were somewhere else at the time the alleged affray occurred, you may be able to raise evidence of your whereabouts as part of your defence.

• Argue that were not part of the group and you did not join in their common purpose.

• Contest there were twelve or more people in the group.

• Contend there was no use or threat of violence.

• Raise that a person of reasonable firmness would not have feared for their safety.

 

As with any criminal offence, the prosecution must prove all the elements of the offence beyond a reasonable doubt. If you have a defence available, the prosecution must negate that defence beyond reasonable doubt if the Court is to find you guilty. If you are charged with the offence of affray, riot, or any other offence constituting public disorder, please contact KF Lawyers to arrange for a free consultation to discuss potential defences and range of sentences that are available in your situation.