Unlawful Assembly
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What Does It Mean to Be Charged with Unlawful Assembly?
Unlawful assembly is recognised as a common law offence, not explicitly defined by Victorian legislation other than its enforcement through penalties outlined in section 320 of the Crimes Act 1958 (CA). The offence is characterised by the gathering of three or more individuals who come together with a shared intent to commit or prepare for a crime using open force or engaging in violent behaviour that threatens public peace.
Examples of Unlawful Assembly:
Unlawful assembly can encompass a variety of behaviours, including but not limited to:
- A large group unlawfully disrupting a public memorial.
- Individuals collectively causing damage to property, such as a school.
- A group protesting with aggressive language and threatening violence against a particular community.
What Must the Prosecution Prove?
For a conviction of unlawful assembly, the prosecution must establish the following elements beyond a reasonable doubt:
1.The Act:
That three or more individuals participated in a gathering.
2. The Intention:
That the assembly was intended to fulfill a common purpose.
3. Unlawful Purpose:
That this common purpose involved unlawful actions, potentially communicated through social media, public statements, or planned actions.
4. Use of Force or Threat to Public Peace:
That the assembly involved actions that either directly committed a crime or jeopardised public peace through violent behaviour.
It is essential that both the intention and the unlawful nature of the assembly coexist for the prosecution to succeed. Assemblies occurring in public spaces are typically easier for the prosecution to prove due to the presence of witnesses and the nature of public engagement.
Penalties for Unlawful Assembly:
If found guilty of unlawful assembly, penalties may include:
- Imprisonment:
As a level 6 offence, this carries a maximum sentence of 5 years.
- Diversion Programs:
Especially applicable for first-time offenders or those with mental health issues, allowing for a clean criminal record if successfully completed.
- Community Corrections Orders:
Often combined with requirements for behavioural change programs or counselling.
- Financial Fines:
Either as a conviction or non-conviction.
- Good Behaviour Bonds:
Promises to the Court to refrain from further offending.
Where Will the Case Be Heard?
Unlawful assembly assault charges are handled summarily in the Magistrates Court of Victoria.
Factors and Defences to Consider:
When mounting a defence against an unlawful assembly charge, several factors may be considered, including:
- Whether the prosecution has sufficiently established all elements of the offence.
- The number of participants in the assembly.
- The shared intention and common purpose of the participants.
- Whether the assembly posed a threat to public peace or involved the use of force.
Possible Defences Include:
- Challenging the prosecution’s ability to prove beyond a reasonable doubt all elements of the offence.
- Arguing that fewer than three individuals were involved.
- Demonstrating that participants did not share a common unlawful purpose.
- Claiming an honest and reasonable mistake of fact.
- Asserting duress, where the defendant was compelled to participate due to threats of harm.
- Presenting an alibi supported by phone or bank records.
- Claiming mistaken identity based on witness misidentification.
- Utilising mental impairment or illness as a complete defence, demonstrating the defendant’s lack of awareness of their actions or the lawfulness of their conduct.
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What Happens Next?
Following a charge of unlawful assembly, it is crucial to engage legal representation early. The criminal justice system can be daunting, particularly for first-time defendants. Consulting with experienced lawyers ensures that you receive the necessary guidance, from understanding your rights during police interviews to navigating court proceedings.
Our team at MK Law specialises in unlawful assembly cases, preparing robust defences and plea strategies tailored to your unique circumstances. We strive to advocate for the fairest penalties and protect your rights throughout the process.
If you or someone you know is facing unlawful assembly charges, contact our dedicated legal team for confidential advice 24/7 at 1800 130 120 or marcus@mklawfirm.com.au.
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