Fighting in Public Causing Fear – (Affray)
Pursuant to section 71 of the Criminal Code 1913 (WA), it is a crime for a person to take part in a fight with another person if that fighting is:
- In a public place or in view of a public place; and
- In circumstances that are likely to cause fear to any person.
This crime occurs where the fighting could cause fear, or apprehension of fear, in people who are not involved in the fighting. It does not require that a person is actually put in fear, only that if a person was present they could reasonably be expected to be fearful.
In some jurisdictions, this crime is known as “affray”.
This crime is concerned with the public order aspect of fighting in the way described. A person who was involved in a fight in or near a public place may also be charged with assault-related crimes as well as the crime of “Fighting in Public Causing Fear”.
What Type of Actions Might Constitute Fighting in Public Causing Fear?
Because of the definition of this crime, any time a person is involved in a fight in pubic they could be charged with this crime. An obvious example would be where a person is in a fight is a crowded public area where there are numerous people in the vicinity who see the fight.
Each case is considered according to its own circumstances to establish if they would be likely to cause fear. As such, it may be that people fighting in a place where it was unlikely that anyone else would see it would not be committing this crime even though it was in a public place. Similarly, a licensed boxing match would not result in the fighters being guilty of this crime.
Which Court is this Charge Heard in?
The crime of “Fighting in Public Causing Fear” is an either-way charge which means it can be heard on indictment in the District Court or summarily in the Magistrates’ Court.
This crime is most likely to be heard in the Magistrates’ Court unless the person is facing other serious charges which arise from the same incident. If those other charges were of a type which are required to be heard in the District Court the “Fighting in Public Causing Fear” charge will also be heard in the District Court.
What the Police Must Prove
To be able to prove this crime in Court, the prosecution must establish the following facts beyond reasonable doubt:
- The person took part in a fight with another person;
- That fight was in a public place or in view of a public place; and
- The fight was in circumstances that were likely to cause fear to any person.
Possible Defences to the Charge of Fighting in Public Causing Fear
The most common ways to defend this charge are:
- Giving evidence that the person was not involved in the fight that is alleged;
- Giving evidence to the Court that creates a reasonable doubt that the fighting would have caused fear to any person who witnessed it; or
- Giving evidence which establishes a relevant defence. Such defences could include:
- Provocation; or
The crime of “Fighting in Public Causing Fear” carries a maximum penalty of imprisonment for two years if it is heard in the District Court. If the charge is heard summarily in the Magistrates’ Court, the maximum penalty is a fine of $6,000.00.
Mandatory Sentencing When Committed in Association with a Declared Criminal Organisation
A “Declared Criminal Organisation” is an organisation which has been declared to be a criminal organisation pursuant to the Criminal Organisations Control Act 2012 (WA). An example of this is an outlaw motorcycle gang.
The crime of “Fighting in Public Causing Fear” is listed in schedule 1A of the Sentencing Act 1995 (WA) and is therefore a crime to which part 2 division 2A of that Act applies. Pursuant to section 9D of the Sentencing Act 1995 (WA), if a person who is charge with “Fighting in Public Causing Fear” commits the crime in association with a “Declared Criminal Organisation”, they must be sentenced to a term of imprisonment for two years regardless of whether the charge is heard in the District Court or the Magistrates’ Court.
A well-publicised example of where this may apply is when there are fights in public between members of motorcycle gangs which have been declared as “Declared Criminal Organisations”.