Affray

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Affray used to be a common law offence.

In 2017 the common law offence was abolished, and ‘affray’ was included in s 195H of the Crimes Act 1958.

Affray is when:

  • A person uses or threatens to use unlawful violence, and
  • That person’s behaviour could cause a person of ‘reasonable firmness’ to be terrified (even if there was no such witness at the scene)

A threat of violence must involve more than just words.

A person will be guilty if they intended to use or threaten violence or if they were reckless in that their behaviour involved using or threatening violence.

It is an offence whether it happens in public or in private.

If 2 or more people use or threaten violence, the combined conduct is considered. And it doesn’t matter if they acted simultaneously.

 

Penalty

The penalty is a maximum of 5 years jail. 

If the person was wearing a face covering at the time to conceal their identity or to protect them from crown controlling substances, the penalty is a maximum of 7 years jail time.

In both cases, the prosecution must prove that there was fighting or violence used by one or more people against another or other people, or an unlawful display of force, and this might cause a reasonable bystander to be terrified.

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Affray

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