7.4.22.4 - Checklist: Affray with face covering

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Five elements the prosecution must prove beyond reasonable doubt:

1. The accused used or threatened unlawful violence; and

2. The accused’s use or threat of violence was intentional or reckless; and

3. The accused’s conduct would cause a person of reasonable firmness present at the scene to be terrified; and

4. The accused was wearing a face covering;

5. The accused was wearing the face covering primarily to [conceal their identity / protect themselves from the effects of a crowd-controlling substance]

Use or threaten unlawful violence

1. Did the accused use or threaten unlawful violence?

If yes, then go to 2

If no, then the accused is not guilty of affray with face covering

State of Mind

2. Was the accused’s use or threat of unlawful violence [intentional / reckless]?

[Consider – Reckless means aware that it was probable that the conduct involved unlawful violence]

If yes, then go to 3

If no, then the accused is not guilty of affray with face covering

Person of reasonable firmness would be terrified

3. Would the accused’s conduct have caused a person of reasonable firmness present at the scene to be terrified?

If yes, then go to 4

If no, then the accused is not guilty of affray with face covering

Person of reasonable firmness would be terrified

4. Was the accused wearing a face covering when he/she used or threatened violence?

If yes, then go to 5

If no, then the accused is not guilty of affray with face covering

Person of reasonable firmness would be terrified

5. Was the accused’s primary purpose of wearing the face covering to [conceal his/her identity / protect himself/herself from the effects of a crowd-controlling substance]?

If yes, then the accused is guilty of affray with face covering (as long as you also answered yes to questions 1, 2, 3 and 4)

If no, then the accused is not guilty of affray with face covering

Last updated: 17 April 2019