Affray is a statutory offence under Crimes Act 1958 s195H.
Before the commencement of Crimes Act 1958 s195G, affray was a common law offence.
The common law offence was defined as where the accused participates in unlawful violence of such a kind as is calculated to cause any person of reasonable firmness who might witness it to be terrified (Attorney General’s Reference (No 3 of 1983)  1 All ER 501; DPP v Russell (2014) 44 VR 471).
Under the Crimes Act 1958, affray is committed where a person uses or threatens unlawful violence and whose conduct would cause a person of reasonable firmness present at the scene to be terrified.
The statutory offence largely had the effect of expanding the common law offence to explicitly include threats of violence in addition to the use of violence. The statutory provision also simplified the law regarding whether a “person of reasonable firmness” need be present.
Unless stated otherwise, all statutory references are to sections of the Crimes Act 1958.
For an accused to be guilty of affray, the following elements must be satisfied:
The accused used or threatened unlawful violence;
The accused’s conduct was intentional or reckless;
The accused’s conduct would cause a person of reasonable firmness present at the scene to be terrified.
Used or threatened unlawful violence
The first element the prosecution must prove is that the accused used or threatened unlawful violence.
An affray can occur in private as well as public places (s195H(4)(a); Button v DPP  AC 591, Taylor v DPP  AC 964).
The Crimes Act 1958 does not define ‘unlawful violence’ for affray. It does, however identify “engaging in unlawful fighting with another person” as an example of “unlawful violence” (s195H(1)).
Common law prosecutions for affray provide further examples of unlawful violence, including face-to-face confrontations where violence was used or threatened (I v Director of Public Prosecutions  1 AC 285) and one or more people shouting, struggling, threatening, waving weapons, throwing objects and exchanging and threatening blows (R v Smith  1 Cr App R 14).
In the context of interpreting the term “act of violence” in Crimes Act 1958 s 3A, the Full Court explained that violence was not limited to physical force, but included threats and menaces to induce fear or terror or to intimidate in order to remove resistance (R v Butcher  VR 43; R v Galas (2007) 18 VR 205 at ; Rich v R (2014) 43 VR 558 at )
Mere possession of weapons does not amount to a threat of unlawful violence. However, where the weapons are visible, or held or brandished in a threatening way, this might amount to unlawful violence (I v Director of Public Prosecutions  1 AC 285).
Words alone are not sufficient to provide a threat of unlawful violence (s195H(3); R v Robinson  Crim LR 581). However, a verbal threat of unlawful violence which is accompanied by brandishing a weapon of some kind may be sufficient (R v Dixon  Crim LR 579).
Number of persons
Affray can be committed by one person alone, if they are using or threatening unlawful violence in a manner that might reasonably be expected to terrify a bystander (Taylor v DPP  AC 964; Attorney General’s Reference (No 3 of 1983)  1 All ER 501; Colosimo and Ors v Director of Public Prosecutions  NSWSC 854).
If two or more persons threaten unlawful violence, their conduct will be considered together, and it is immaterial whether they used or threatened unlawful violence simultaneously (s195H(5)).
Intentionally or recklessly
The second element the prosecution must prove is that the accused’s conduct was intentional or reckless.
The accused must have intended to use or threaten violence or was reckless as to whether the person's conduct involved the use of violence or threatend violence (s195H(2)).
Reckless in this context means acting in the knowledge that unlawful violence would probably result from their conduct but deciding to continue regardless (R v Crabbe (1985) 156 CLR 464).
Would cause a person of reasonable firmness to be terrified
The third element the prosecution must prove is that the conduct of the accused would cause a person of reasonable firmness present at the scene to be terrified.
This element is concerned with whether the conduct would cause a hypothetical person of reasonable firmness to fear for their safety, rather than a specific person at the scene (I v Director of Public Prosecutions  1 AC 285).
In assessing this element, the jury is concerned with the reaction of the hypothetical reasonable person at the time of the accused’s acts of intentional violence (R v Novakovic  VSC 339, ).
It is not necessary to prove that a person of reasonable firmness was present at the time of the alleged affray (s195H(4)(b)).
At common law, this element operated differently for affrays in public and in private. For public affrays, it was unnecessary to prove the presence or likely presence of a person of reasonable firmness (Attorney General’s Reference (No 3 of 1983)  1 All ER 501), whereas for private affrays, the prosecution needed to prove the actual presence of persons of reasonable firmness (R v Taylor  AC 964). Under statute, the presence of a person of reasonable firmness is not required in any case.
The prosecution need only prove that the violence was capable of terrifying a bystander of reasonable firmness (R v Sharp  1 QB 552; Paisley v R  VSCA 79). The conduct must be examined objectively.
The meaning of “reasonable firmness” is not defined in the Crimes Act 1958 (Vic).
Common law authorities often referred to a person of “reasonableness firmness and courage” (R v Ly  VSCA 45; DPP v Russell (2014) 44 VR 471) or “reasonably firm character” (R v Taylor  AC 964).
‘Terrified’ is a more agitated emotional state than “nervous” or “frightened” (Paisley v R  VSCA 79).
The circumstances of affray are varied. Affray may involve trivial rowdy scenes which terrify for a short time or at the other end of the scale, an extensive skirmish involving numerous casualties (R v Keys (1987) 84 Cr App R 204).
Affray while wearing a face covering
Section 195H(1)(b) specifies a higher maximum penalty that applies if, at the time of committing the offence, the accused was wearing a face covering primarily:
To conceal the person’s identity; or
To protect the person from the effects of a crowd-controlling substance (s195H(1)(b)).
While this provision has not yet been considered, it is likely that the higher maximum penalty will only apply where the prosecution specifies that the face-covering was present as part of its statement of the offence, and the jury is satisfied of proof of these additional matters beyond reasonable doubt as elements of an aggravated offence (see R v Courtie (1984) AC 463; Kingswell v The Queen (1985) 159 CLR 264; R v Meaton (1986) 160 CLR 359; R v Satalich (2001) 3 VR 231).
Cases involving face-covering therefore require proof of two additional elements:
That the accused was wearing a face covering at the time of committing the offence; and
That the accused’s purpose of wearing the face-covering was to conceal his or her identity or to protect from the effects of a crowd-controlling substance.
Self-defence is a complete defence to the charge of affray (Attorney General’s Reference (No 3 of 1983)  1 All ER 501; Honeysett v The Queen (1987) 10 NSWLR 638; R v Nguyen (1995) 36 NSWLR 397).
If self-defence arises, the jury will need to be instructed about that issue. See Self-defence.