Introduction

Getting caught in a riot in New South Wales is a big no-no, and it can land you in hot water according to the Crimes Act 1900. Imagine being in the middle of a scene with at least a dozen people making a ruckus, either stirring up trouble or making folks feel unsafe. That’s what section 93B talks about—unlawful violence for a shared goal. This kind of chaos might make just about anyone there shake in their boots, worried about their safety. Here’s the scoop on it for everyone who likes to play it safe—no one wants to hit those severe penalties.

Understanding the elements of a riot offence is crucial if you or someone you know has been charged with riot in NSW. This guide aims to clarify what constitutes a riot offence, the elements the prosecution must prove beyond a reasonable doubt, potential defences to a riot charge, and the penalties that may be imposed if an individual is found guilty of riot. Seeking legal advice from experienced criminal lawyers is integral if facing a riot charge due to the severe nature of this criminal offence and the potential for imprisonment.

Defining the Offence of Riot in NSW

Legal Definition of Riot Under Section 93B

In NSW, the offence of riot is defined under section 93B of the Crimes Act 1900 (NSW). This section outlines the specific circumstances that constitute a riot offence and the associated penalties.

A riot occurs when 12 or more individuals present together use or threaten unlawful violence for a common purpose. Additionally, the collective conduct of the group must be such that it causes a person of reasonable firmness present at the scene to fear for their personal safety. If these elements are met, each person using unlawful violence for the common purpose is guilty of a riot and may be liable to imprisonment.

Several key components are integral to this legal definition of a riot offence:

• Number of Persons: The offence requires the presence of 12 or more people who are together.
• Unlawful Violence: There must be the use or threatened use of unlawful violence by these individuals. Unlawful violence refers to any form of violence that is not legally excused, excluding actions such as self-defence.
• Common Purpose: The unlawful violence must be carried out for a common purpose among the group. This common purpose can be inferred from the conduct of the group.
• Person of Reasonable Firmness: The group’s collective conduct must be such that it would cause a person of reasonable firmness present at the scene to fear for their safety. It is important to note that no actual person needs to be present to experience fear; the assessment is based on a hypothetical individual of reasonable firmness.

What Actions Constitute a Riot Offence?

A riot offence involves the use or threatened use of unlawful violence by a group of 12 or more people. This type of unlawful violence can manifest in various forms, including physical actions such as kicking, pushing, or punching. Additionally, it encompasses threats to commit such violent acts.

Examples of actions that may constitute a riot offence include:

• Escalated Protests: Demonstrations or protests that escalate into physical violence can be classified as a riot.
• Violent Home Disputes: A fight within a private home that escalates with bystanders joining in and using unlawful violence can constitute a riot, as the offence can occur in both private and public places.

For conduct to be considered a riot offence, it must be assessed whether a hypothetical person of reasonable firmness at the scene would fear for their safety due to the group’s actions. The more aggressive or severe the violence or threats, the more likely a court is to determine that this element is satisfied.

Proving a Riot Charge: What the Prosecution Must Prove

Key Elements the Prosecution Must Prove for a Riot Charge

To secure a conviction for a riot offence in NSW, the prosecution bears the responsibility of proving several key elements beyond a reasonable doubt. This high standard of proof is essential in criminal law, ensuring that no person is convicted unless their guilt is unequivocally established. The elements that the prosecution must prove are clearly defined in section 93B of the Crimes Act 1900 (NSW).

These key elements are:

• Presence of twelve or more persons:
  The prosecution must demonstrate that the accused was present in a group of twelve or more people. It is immaterial whether these persons used or threatened unlawful violence simultaneously. The court has clarified that “present together” can encompass individuals across a broad area, such as opposite ends of a football stadium.
• Use or threat of unlawful violence for a common purpose:
  It must be proven that this group collectively used or threatened to use unlawful violence. Unlawful violence is any violence that is not legally excused, excluding actions like self-defence. Additionally, this violence must be for a common purpose, which can be inferred from the conduct of the group.
• Conduct causing fear to a person of reasonable firmness:
  The prosecution needs to prove that the conduct of the group, taken collectively, would cause a person of reasonable firmness present at the scene to fear for their personal safety. This element is assessed objectively, meaning no actual person of reasonable firmness needs to be present at the scene. The focus is on whether a hypothetical ordinary person, if present, would have genuinely feared for their safety due to the group’s actions.

If the prosecution fails to prove any of these elements beyond a reasonable doubt, the accused cannot be found guilty of a riot charge.

Defending a Riot Charge in NSW

Common Defences to Riot Charges

When facing a riot charge in NSW, several defences may be available to challenge the prosecution’s case. A primary defence is to argue that the prosecution has not successfully proven all elements of the offence beyond a reasonable doubt. If the prosecution cannot establish each element, a conviction for a riot offence cannot be secured.

Common defence arguments against a riot charge include:

• Disputing involvement in the group: Asserting that you were not part of the group of twelve or more persons who were present together and used or threatened unlawful violence. This defence questions whether you were actually participating in the riotous conduct.
• Questioning the number of people: Arguing that there were not twelve or more people involved in the conduct. The offence of riot under section 93B of the Crimes Act 1900 (NSW) specifically requires a minimum of twelve people. If the number was less, the charge of riot may not be applicable.
• Denying violence or threats: Contending that there was no use or threat of unlawful violence by the group. The prosecution must prove that the group’s conduct involved the use or threatened use of unlawful violence.
• Arguing the ‘reasonable firmness’ test is not met: Claiming that the group’s actions would not have caused a person of reasonable firmness present at the scene to fear for their personal safety. This defence focuses on whether the conduct, taken collectively, was serious enough to instil fear in a hypothetical person of reasonable firmness.

Other Potential Defences: Self-Defence, Duress, and Necessity

Beyond the common defences, other legal defences like self-defence, duress, and necessity can be crucial in certain riot charge cases.

• Self-defence: This defence applies if you used unlawful violence to protect yourself, another person, or your property. Under section 418 of the Crimes Act 1900 (NSW), actions taken in self-defence are lawful if you believed your conduct was necessary to defend yourself or others, protect property, prevent unlawful deprivation of liberty, or stop criminal trespass. For self-defence to be valid, your response must be deemed reasonable in the given circumstances.
• Duress: This defence can be argued if you were forced to participate in the riot against your will due to threats or coercion from another person. To establish duress, you must demonstrate that there was a credible threat serious enough to make an ordinary person in your situation act in the same way, and that the threat was ongoing with no reasonable chance of escape.
• Necessity: The defence of necessity may apply if your involvement in the riot was to prevent a greater harm or serious consequences. For this defence, you must prove that your actions were necessary to avoid serious and irreversible harm to yourself or someone you were protecting, you genuinely believed you were in immediate danger, and your actions were a reasonable and proportional response to the perceived threat. Penalties for a Riot Offence in NSW Maximum Penalties and Imprisonment for Riot In NSW, a riot offence is regarded as a serious criminal offence carrying significant penalties. Under section 93B of the Crimes Act 1900 (NSW), the maximum penalty for a riot offence is 15 years imprisonment. This reflects the legal system’s view of riot offences as severe disturbances to community and individual safety. It is important to note that the court in which the case is heard can influence the maximum penalty imposed. While the maximum penalty of 15 years imprisonment applies when the matter is dealt with in the District Court, the maximum term is reduced to two years if the case is heard in the Local Court. Riot offences are classified as Table 1 offences, meaning they are typically handled in the Local Court, unless either the prosecution or defence elects to have the case heard in the District Court. Alternative Sentencing Options to Imprisonment Despite the potential for a lengthy prison sentence, courts have various alternative sentencing options available for individuals found guilty of a riot offence in NSW. These alternatives to full-time imprisonment allow the court to impose penalties tailored to the specific circumstances of the offence and the offender. These alternative sentencing options include:
  • Intensive Correction Order (ICO): An ICO is a community-based sentence that involves strict conditions, serving as an alternative to full-time imprisonment. Conditions may include home detention, community service, curfews, and participation in counselling or treatment programs.
  • Community Correction Order (CCO): A CCO requires offenders to adhere to certain standard conditions, such as not committing further offences and appearing in court if required. Additionally, the court may impose conditions like community service or participation in rehabilitation programs at its discretion.
  • Conditional Release Order (CRO): A CRO involves standard conditions of good behaviour and the requirement to appear before the court if needed. This order allows the court to impose conditions on an offender without resorting to imprisonment.
  • Section 10 Dismissal: Under Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court can dismiss a charge even if guilt is established, without recording a conviction or imposing any other penalty. This option ensures that the person does not have a criminal record concerning the riot offence.
  • Fines: The court may impose a fine as a penalty for a riot offence. When determining the amount, the court will consider the offender’s financial situation and capacity to pay.
  These alternative sentencing options demonstrate that while a riot is a serious offence, the penalties can vary significantly depending on the specifics of each case and are not always limited to imprisonment.

Riot vs Affray and Violent Disorder: Key Differences

Riot vs Affray

Riot and affray are both offences related to public order and are addressed in the Crimes Act 1900 (NSW). Affray involves using or threatening unlawful violence towards another person, which would cause a person of reasonable firmness present at the scene to fear for their personal safety.

The key differences between riot and affray are:

• Number of People Involved:
  A riot requires a minimum of twelve or more individuals present together. In contrast, affray does not specify a minimum number of participants and can be committed by a single person using or threatening unlawful violence.
• Direction of Violence:
  In a riot, the unlawful violence is often undirected and used to further a common purpose among the group. Conversely, affray requires the violence or threat of violence to be directed towards another person.

See our comprehensive article on the differences between riot and affray for more details.

Riot vs. Violent Disorder

Violent disorder and riot both involve groups of people using or threatening unlawful violence, causing a person of reasonable firmness to fear for their safety. However, the primary difference between these offences is the number of people involved.

The main differences are:

• Number of People Involved:
  A riot involves twelve or more people, while violent disorder involves three or more persons. If the group size is less than twelve but more than three and the other elements are met, it is likely to be charged as violent disorder rather than a riot.
• Legislation and Severity:
  Violent disorder is governed by section 11A of the Summary Offences Act 1988 (NSW) and is classified as a summary offence, carrying a maximum penalty of six months imprisonment. In contrast, a riot, under section 93B of the Crimes Act 1900 (NSW), is a more serious criminal offence with a maximum penalty of fifteen years imprisonment. Violent disorder charges are often used in situations of minor disturbances, while riot charges are reserved for incidents where large groups use violence for a common purpose.

Conclusion

Understanding what constitutes a riot offence, the serious penalties it carries, and available defences is crucial for anyone facing such charges in NSW. Given the complexities of section 93B of the Crimes Act 1900 (NSW) and the potential for severe consequences like imprisonment for 15 years, navigating a riot charge requires a clear understanding of the law and strategic defence. From the necessity for the prosecution to prove every element beyond a reasonable doubt, to exploring defences such as self-defence, duress, or necessity, the legal process is intricate and demands careful attention.

If you or someone you know is facing a riot charge in Sydney or NSW, seeking immediate legal advice from experienced criminal lawyers is paramount. Contact Daoud Legal today to book a consultation and benefit from our unparalleled expertise in criminal defence, ensuring you receive the most favourable outcome in your riot charge case.

Frequently Asked Questions About Riot Offences in NSW