Affray & Riot Charges Are Indictable Offences – NSW

Understanding the Definition and Consequences of Riot as an Indictable Offence in NSW

According to New South Wales Crimes, a riot is an indictable offence. As the Act in Section 93B provides, when “twelve or more persons who are present together use or threaten unlawful violence for a common purpose, and the conduct of them taken together is such as would cause a person of reasonable firmness present at the scene to fear for his or her safety, each of the persons using unlawful violence for the common purpose is guilty of riot.”

The section further states that whether or not the persons have used or threatened unlawful violence simultaneously is irrelevant.

However, the reading of the area makes it clear that at least 12 persons should be involved in the incident, and they must be simultaneously present to be charged with riot.

Another essential element of the offence of riot is “common purpose.” There must be evidence to prove that the violence was used or threatened by the persons in pursuit of a common purpose.

Subsection 3 of the same section further states that common sense can be inferred from conduct. Regarding Subsection 4, “no person of reasonable firmness need be or be likely to be present at the scene.”

The requirements of 12 or more persons, as well as a common purpose, makes the offence of riot different from other public order offences such as affray and violent disorder. As for affray, there is no requirement as to the minimum number of persons; therefore, a charge of affray can be made against a person whose conduct is violent. On the other hand, violent disorder requires a minimum of three persons, but the fact that they have a common purpose for using or threatening violence is not required.

Subsection 5 states that the offence of riot can be committed both in private and public places. Violence is defined as any violent conduct. 93A provides that except for affray, violence includes violent behaviour towards property as well as violent behaviour towards persons.

Since both the use of violence and threatened use of violence are considered, the prosecution doesn’t need to prove that actual harm has been caused. 93A also clarifies that violence is not restricted to conduct, causing or intended to cause injury or damage. It can include other violent conduct, such as throwing at or towards a person’s missile, even if it does not hit or fall short.

Possible defences for riot include traditional criminal law defences such as duress, self-defence and necessity. If the defendant can prove that the number of persons involved in the incident was less than 12 or did not have one purpose in common, it can also make it difficult for the prosecution to maintain the action.

Since riot is an indictable offence, the prosecution or defendant may elect whether the district or local court deals with the matter. However, another implication of being an indictable offence is that the penalties for riots are usually severe. For instance, as Section 93B provides, the maximum penalty for riot is imprisonment for 15 years if the District Court deals with the matter. If the Local Court deals with the case, the maximum penalty is two years imprisonment.

However, depending on the seriousness of the offence and other factors, such as the criminal record of the convict, the severity of the penalties may differ. Other possible penalties include Good behaviour bonds, suspended sentences, fines, community service orders, intensive correction orders, and prison sentences. The relevant law part is 431, and the appropriate short description is riot-t1.