Affray is commonly charged after group fights or public disturbances, often where police cannot pin down exactly who did what. It is an indictable offence under section 195H of the Crimes Act 1958, frequently heard in the Magistrates’ Court. McMahon Criminal Defence Lawyers defends affray charges at the Ballarat Magistrates’ Court and across Victoria on fixed fees.
What is Affray?
Under section 195H of the Crimes Act 1958, a person commits affray if they use or threaten unlawful violence and their conduct would cause a person of reasonable firmness present at the scene to be terrified. Affray became a statutory offence in 2017, having previously existed at common law. Importantly, there need be no actual victim and no one need actually be hurt or even present — the test is whether a hypothetical bystander of reasonable firmness would have been terrified.
What the Prosecution Must Prove
- the accused used or threatened unlawful violence;
- the use or threat was intentional, or the accused was reckless as to it; and
- the conduct would cause a person of reasonable firmness present at the scene to be terrified.
“Terrified” means a state of agitation more severe than merely being nervous or frightened.
Penalty
The maximum penalty for affray is 5 years’ imprisonment, increasing to 7 years where the offence was committed while wearing a face covering used primarily to conceal identity or to protect against crowd-control substances. Although indictable, affray is often dealt with in the Magistrates’ Court, where lesser penalties including fines and community orders may apply.
Why Affray is Often Charged
Affray is frequently the prosecution’s fallback where a more specific assault charge cannot be made out — for example, in a brawl where individual blows cannot be attributed. It is commonly charged in combination with assault offences. This also means that, with careful analysis of the evidence, there is often real scope to challenge or negotiate the charge.
Defending the Charge
- Self-defence — lawful, reasonable force;
- Conduct not capable of terrifying a person of reasonable firmness;
- Not involved / mistaken identity — common in group incidents;
- Duress; and
- Negotiated resolution, including diversion in suitable cases.
If you have been charged with affray, contact us for advice. See also our main assault offences page.
Frequently Asked Questions
Can I be charged with affray if no one was hurt?
Yes. Affray does not require any injury or even an actual victim. The test is whether your use or threat of unlawful violence would have caused a hypothetical person of reasonable firmness present at the scene to be terrified.
What is the maximum penalty for affray in Victoria?
The maximum is 5 years’ imprisonment under section 195H of the Crimes Act 1958, increasing to 7 years if the offence was committed while wearing a face covering used to conceal identity or protect against crowd-control substances. It is often dealt with in the Magistrates’ Court.
Why have I been charged with affray instead of assault?
Affray is often charged where police cannot attribute specific acts of violence to specific people — for example in a group brawl — so it serves as a fallback to a more specific assault charge. It is also frequently charged alongside assault.
What does ‘terrified’ mean for an affray charge?
The courts have held that ‘terrified’ means a state of agitation more severe than merely being nervous or frightened. The prosecution does not have to prove anyone was in fact terrified — only that the conduct was capable of terrifying a bystander of reasonable firmness.
Can I get diversion or avoid a conviction for affray?
In suitable cases, yes — particularly less serious examples dealt with in the Magistrates’ Court. Diversion and findings of guilt without conviction are possible outcomes depending on the circumstances, your history, and how the matter is negotiated and presented.
Get Expert Legal Advice — Fixed Fees, No Surprises
McMahon Criminal Defence Lawyers provides experienced, fixed-fee representation for this charge and all criminal matters, appearing at the Ballarat Magistrates’ Court and across Victoria. Contact us for a free, confidential initial consultation.
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