7.4.22.1 - Charge: Affray

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This charge should be used when the prosecution alleges that the accused committed the offence of affray but the accused, at the time of committing the offence, was not wearing a face covering.

If the accused was wearing a face covering, use Charge: Affray with face covering.

This charge will need to be modified where the accused is one of several people allegedly involved in the affray. See Statutory Complicity (From 1/11/14) and Charge: Common law riot for guidance.

I must now direct you about the crime of affray. To prove this crime, the prosecution must prove the following three elements beyond reasonable doubt.

One – the accused used or threatened unlawful violence.

Two – the accused’s use or threat of violence was [intentional / reckless].

Three – the accused’s conduct would cause a person of reasonable firmness to be terrified.

I will now explain each of these elements in more detail.

Used or threatened unlawful violence

The first element the prosecution must prove beyond reasonable doubt is that the accused used or threatened unlawful violence.

There are two parts to this element, and the prosecution must prove both parts beyond reasonable doubt.

Firstly, you need to be satisfied that NOA actually engaged in the conduct alleged by the prosecution.

In this case the prosecution has alleged that NOA [identify alleged conduct].

[Summarise relevant evidence and arguments about NOA’s specific conduct].

The second part of this element is that the accused’s conduct involved the use or threat of unlawful violence. There is no dispute that, if NOA [identify alleged conduct], that conduct involves unlawful violence.[1]

If you are satisfied that NOA [identify alleged unlawful violence], and that this conduct constitutes unlawful violence for the purposes of the offence of affray, then this first element will be met.

Intentional or reckless

The second element goes to the accused’s state of mind. The prosecution must prove beyond reasonable doubt that the accused used or threatened violence [intentionally / recklessly].

[If the prosecution alleges that the accused acted reckless, add the following shaded section]

To prove this element, the prosecution must prove that NOA was aware that [his/her] conduct would probably involve [using / threatening] unlawful violence.

[Summarise relevant evidence and arguments regarding intention and/or recklessness].

It is only if you are satisfied beyond reasonable doubt that the accused’s use or threat of violence was [intentional/reckless] that this second element will be met.

A person of reasonable firmness would be terrified

The third element the prosecution must prove beyond reasonable doubt is that the accused’s conduct would cause a person of reasonable firmness present at the scene to be terrified.

The prosecution does not need to prove that any person of reasonable firmness actually was present at the time, or was terrified. Instead, the question is whether NOA’s conduct was capable of terrifying such a person, if such a person had been present.

The law does not define the phrase ‘reasonable firmness’. It is up to you to decide what it means, and how it operates for this charge.

[If two or more people are alleged to have used or threatened unlawful violence, add the following shaded section]

When you are considering the impact of the violence on a person of reasonable firmness, you must also take into account any unlawful violence by [identify other relevant people]. You must assess the total impact of all the conduct of [identify relevant people] which you find proved. For this purpose, you are not limited to conduct that occurred at the exact same time. [If appropriate, give an example of non-simultaneous conduct in the circumstances of the case].

[Summarise relevant prosecution and defence evidence and arguments regarding the conduct and whether it would have been terrifying to a person of reasonable firmness].

It is only if you are satisfied, beyond reasonable doubt, that the NOA’s conduct would cause a person of reasonable firmness present at the scene to be terrified, that this third element will be met.

Relate law to the evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, before you can find NOA guilty of affray the prosecution must prove to you beyond reasonable doubt:

One – the accused used or threatened unlawful violence; and

Two – the accused’s use or threat of violence was [intentional / reckless]; and

Three – the accused’s conduct would cause a person of reasonable firmness present at the scene to be terrified.

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of affray.

Notes

[1] If the characterisation of the conduct as unlawful violence is in issue, this part of the direction must be modified to explain the issues.

Last updated: 17 April 2019

See Also

7.4.22 - Affray

7.4.21.2 - Checklist: Affray

7.4.22.3 - Charge: Affray with face covering

7.4.22.4 - Checklist: Affray with face covering