Riot Charge NSW
Legal experts in public order offences, including riots
Riot charges are treated with utmost severity within the NSW legal system as they are seen as a disturbance to individual and community safety. It is integral that if you are accused of a riot charge, you contact an experienced legal professional to receive expert advice and guidance. The team at Hamilton Janke Lawyers are experts in public order offences, including riots, and can provide integral legal advice to ensure you receive the most favourable outcome.
As the Crimes Act 1900 (NSW) outlines, a ‘riot’ describes a situation where 12 or more people are present together and use or threaten unlawful violence. The group must have a ‘common purpose’, and the conduct of the group as a whole must cause a person of reasonable firmness to fear for his or her safety.
What actions may constitute a riot?
A riot charge refers to the use or threatened use of unlawful violence by 12 or more people that would cause someone of ‘reasonable firmness’ to fear for their safety. This definition constitutes an array of activities, including but not limited to:
- Protests or demonstrations that escalate into physical violence
- A fight inside a home escalates, and bystanders jump in
NSW legislation specifies that riots may be committed in private and public places.
Riots within NSW are a criminal offence under section 93B of the Crimes Act 1900.
The legislation states,
- “Where 12 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 personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.
- It is immaterial whether or not 12 or more persons simultaneously use or threaten unlawful violence.
- The common purpose may be inferred from conduct.
- No person of reasonable firmness need actually be, or be likely to be, present at the scene.
- Riot may be committed in private and public places.”
Unlawful violence is defined as any sort of violence that cannot be excused by law. This does not include lawful violence, such as self-defence or the defence of others.
Person of reasonable firmness
Put simply, a person of reasonable firmness refers to an ordinary person/ hypothetical bystander at the scene of an event who, as a result of the event, fears for their personal safety. While no legal definition exists for a ‘person of reasonable firmness,’ it is largely accepted as an average citizen.
What is the difference between violent disorder, affray, and riot?
A violent disorder refers to a situation in which 3 or more persons who are present together use or threaten unlawful violence, and their conduct would cause a person of reasonable firmness to fear for his or her personal safety. Under section 11A of the Summary Offences Act 1988 (NSW), this is a criminal offence, and those found guilty are liable to a maximum term of 6 months imprisonment.
A violent disorder charge differs from a riot in the legal definition and consequent severity, with a violent disorder referring to 3+ people, whereas a riot involves 12+ people. Violent disorder charges are predominantly used in situations of minor disturbances, whereas riots cover situations where large groups of people use violence to further a common purpose.
As outlined under section 93C of the Crimes Act 1900, affray is defined as the unlawful use of violence (or threat of violence) towards another person in circumstances where that conduct would cause a person or reasonable firmness present at the scene to fear for their personal safety.
An affray charge differs from a riot charge as it does not require a large group of people. Further, an affray charge requires unlawful violence, or threat or violence, to be directed towards another person, whereas the use of unlawful violence in riots is often undirected and is instead used to further a common purpose.
Which court are violent disorder, affray, and riot charges heard?
As both affray and riot charges are indictable offences, they can be heard in the district court before a judge and jury if the prosecution elects to hear them in a higher court. However, they are often heard in the local court unless they are heard alongside other more serious offences.
Charges of violent disorder are summary offences and are therefore finalised before a magistrate in the local court.
If an individual is found guilty of a riot charge, they are liable to a maximum penalty of 15 years imprisonment. However, if the case is heard in the local court, the accused is liable to a maximum penalty of two years imprisonment.
Despite the maximum penalty, the judge or magistrate can utilise a range of sentencing options to provide an appropriate penalty, dependent on the circumstances. These include, but are not limited to:
- Section 10 – dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order (ICO)
- Home Detention
- Section 9 – Good behaviour bond
If you choose to plead guilty to affray charges in NSW, you agree with the charges against you and take responsibility for the offence. In these circumstances, your matter will progress to sentencing, where the judge or magistrate will assess the case’s individual circumstances to determine an appropriate punishment. If your matter is heard in the local court, you are liable to a maximum penalty of 2 years imprisonment and are liable to a maximum penalty of 10 years imprisonment if your case is heard in the district court.
If you choose to enter a guilty plea, doing this at the earliest possible opportunity will provide the best possible outcome in sentencing. This will mean your case progresses straight to sentencing, with a maximum 25% sentencing discount for an early plea.
Pleading Not Guilty
If you disagree with the charges made against you, you can enter a plea of not guilty, and your case will progress to trial. Your case will either be heard before a local court magistrate or a judge and jury in the district court.
In these circumstances, the prosecution and defence can present their case and provides the opportunity to raise any possible defences. Due to the burden of proof in the NSW legal system, if you plead not guilty, you will not be found guilty unless the prosecution can prove beyond a reasonable doubt that you have committed all the elements of the offence.
If you are charged with a riot offence and wish to dispute the accusations made against you, you must contact an expert criminal defence lawyer, such as the team at Hamilton Janke Lawyers. They can provide integral advice on possible defences for your circumstances that, if successful, can result in an acquittal or a lesser sentence.
These include, but are not limited to:
- Self Defence – The accused used unlawful violence to protect themselves, their property or another individual
- Duress – The accused used unlawful violence at the threat or coercion of another
- Necessity – The accused used unlawful violence to prevent serious injury or danger
Burden of Proof
As a criminal offence, the burden of proof for riot charges in NSW lies with the prosecution.
In order to be found guilty of a riot charge, the prosecution must prove, beyond reasonable doubt, the elements of the offence:
That the accused
- Was present with 12 or more people
- The group was collectively using or threatening to use violence; and
- The group’s actions, taken collectively, would cause a person of reasonable firmness to fear for their safety
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If you are being charged with criminal offences such as affray or other public order offences, it is vital that you seek legal advice and legal representation. Our experienced criminal lawyers will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.
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