Shabani s/o Ismael v. R., (PC) Crim. App. 10-A-68, 11/4/68, Platt J.

Shabani s/o Ismael v. R., (PC) Crim. App. 10-A-68, 11/4/68, Platt J.

Accused and one Tabu were charged jointly with affray. [P.C s. 87]. Accused pleaded guilty and was convicted. Tabu pleaded not guilty and at her trial there was evidence that she had taken no part  in any fight but had been assaulted by accused. The trial court held that there was no case for her to answer. It is undisputed that no person other than accused and Tabu took part in the transaction.

            Held: (1) The elements of the offence of affray are (a) that there was a fight, (b) that the accused took part in it, and (c) that the fight occurred in a public place. (2) With regard to element (b), the word ‘fight’ implies a combat of two or more persons in such a manner as to cause a breach of the peace. Thus, if only two person are involved and one of the two remains passive or acts in self-defence, the other person cannot be guilty of affray, although he may be guilty of assault. [Citing Sharp & Johnson v. R., (1957) 41 Crim. App. Reports 86]. (3) No other conviction can be substituted in this case. The Court stated, obiter: Where one of two persons charged with affray pleads not guilty and the other pleads guilty, it would be proper to enter a plea of not guilty on behalf of both accused. Conviction quashed.