Tuvalu Island Courts Bench Book - Federal Court of Australia

Unlawful fighting
Section s28 Public Order Act (Cap 9)
Description
Every person is guilty of an offence who takes part in an unlawful
fight.
Elements • The person named in the charge is the same person who is
appearing in Court;
• The accused took part in a fight with at least one other
person;
• The fight is unlawful.
• The fight threatened public order.
Commentary
Taking part in such a fight is also known as an affray.
Burden and standard of proof
The prosecution must prove all the elements beyond reasonable
doubt. If the defence establishes to your satisfaction that there is a
reasonable doubt, then the prosecution has failed.
Identification
In Court, the prosecution should identify the person charged by
clearly pointing out that person in Court.
The prosecution must provide evidence to prove that it was the
accused who was fighting.
Fighting
There needs to be clear evidence that the accused was a willing
participant in the fight and not merely trying to defend him or
herself against an attack.
Unlawful
The prosecution will need to prove that the fight was unlawful.
Only boxing, wrestling matches and some other sports events would
seem to amount to a lawful fight. Where two people agree to fight
or one person challenges another to fight, then this will be unlawful
if this threatens public order creating anxiety and fear in others, such
that they believe that harm may be caused to them or others.
Tuvalu Island Courts Bench Book June 2004