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What Is An Affray In Criminal Law?

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Affray is the use of or threat of force against another individual which would cause a person of reasonable firmness present at the scene to fear for their personal safety. This is a serious matter as the intention is to cause harm or intimidation and threaten unlawful violence.

If you have been charged with affray then you must seek legal advice immediately to ensure proper compliance with the legal process. Your lawyer will be able to give you expert advice regarding what plea to enter, the defence arguments you may have and they will be able to access the prosecution evidence against you. It is essential that the matter is taken seriously.

Jameson Law have a team of highly specialized lawyers ready to help you with any legal needs you may have, including an affray charge.

What Is Unlawful Violence?

Unlawful violence is any act of violence or use of force against another individual where it causes harm or not. The act may cause intimidation, fear for their safety or physical harm to the individual to be classed as unlawful violence. Any unlawful violence is an offence of affray.

The threat of unlawful violence towards another individual can also cause harm however it is more psychological than physical. If a person of reasonable firmness present at the scene considers they should fear for their personal safety or life then their mental health can suffer as a result of that fear and anxiety. Verbal threats towards a person of reasonable firmness can be just as intimidating as the act of actual bodily harm.

Charge of Affray

The charge of affray is against the Criminal Law Consolidation Act 1935. It is a serious criminal offence which can occur in either a private or public place and it can affect one or more persons in the process. An affray charge breaches several sections of the Crimes Act.

There are a few key elements to the charge as follows;

  1. There is a use of violence or threat of violence against another person or more than one person;
  2. The person threatened is a person of reasonable firmness;
  3. The threat or use of violence was intended to cause harm.

As with all criminal matters, the charge must be proven beyond reasonable doubt in order to find a person guilty. This will occur in either the local court, district court or the supreme court depending on the severity of the situation. If the individual is intending to plead guilty then there will be no need for a hearing or criminal trial. However, if the individual pleads not guilty then a full jury panel will be required.

If found guilty, the judge will need to consider whether to sentence by way of maximum penalties or whether some leniency can be given with a lighter sentence.

What Court Will My Matter Be Heard In?

There are three main courts that your matter can be heard in, the Local Court, District court and the Supreme court. The main difference between the courts is that that the local court and district court hear summary offences and the supreme court hears indictable offences. Supreme Court offences are handled by way of a jury trial whereas district and local court offences are determined by way of hearing before a Magistrate.

Affray charges can fall within either classification depending on the seriousness of the circumstances. Unlawful violence towards another is always considered serious but there are naturally different levels. For example a charge of common assault is classed as a less serious offence then a charge of grievous bodily harm yet they are actions of unlawful violence under the Crimes Act and an offence of affray. If found guilty, they can both result in a prison sentence.

The most important aspect of affray charges is the act of violence which creates fear for a person of reasonable firmness. The fear must be genuine.

What Sentences Could I Receive?

There are multiple penalties that can be given for if charged with affray and convicted but the maximum is a term of several years imprisonment. The following may be considered alternatively;

  1. Suspension of Sentence;
  2. Community service/community corrections order;
  3. Term of imprisonment; and
  4. Good behaviour bond.

The type of sentence you receive will correspond largely with the seriousness of the offence and its circumstance and the type of criminal record, if any, that you hold. If you hold a prior criminal conviction for a similar or violent offence then you may receive a harsher penalty than if you hold no prior criminal history.

Any affray offence is classed as a severe offence in terms of violence as the person intended to cause harm which means that their punishment must not only punish the individual but it must create community deterrence as well. A reasonable person must consider that an act which will result in being charged with affray is not worth the risk.

Are There Defences?

Depending on the circumstances, there can be possible defences to the charge of affray however they can come at a cost. With consideration to the severity of the charge some lawyers will advise against particular defences which seek to minimize the severity of an individuals actions. Lawyers will submit to the court that their client sought a different outcome than the one which arose and that their remorse should mitigate the sentence they receive.

Self Defence

The most common defence is that of self defence however the action must be proportionate to the threat at hand which is rarely the case. There must be an imminent and persistent belief that an individuals personal safety is at risk. This would need to be proven beyond a reasonable doubt that the threat of force was the only proportionate response to the threat posed to the individual.

A reasonable person acting in self defence must only use enough force required to disarm the threat and it must not exceed what is considered proportionate. For example, one hit to disarm may be all that is required but if there is a second and possibly even a third hit then this would be excessive. Commonly, this is where self defence merges with common assault under criminal law.


In some instances, alcohol or illicit substances may form part of the circumstances of an offence of affray. This will naturally impede an individuals judgement and perception and it can factor into the decisions that people make.

Intoxication is rarely every a defence which will determine the accused is not guilty of affray but it is rather an argument used in mitigation of their actions. Whilst intoxication cannot force a person to threaten violence it does inhibit their thinking and decision making abilities. With this in mind the court can consider whether the individual would have made the same choice if not for the presence of intoxication.

Mental Health

Mental health issues can often be a defence to criminal offending however this needs to be assessed to see to what extent there has been mental impairment. It is not simply enough to say that the individual may suffer from bouts of depression or anxiety potentially, rather the condition must be an impairment or incapacitation of some sort.

It can also have long lasting consequences if mental health is relied on as a defence so carefully consideration should be given before going down this path.


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