This article was written by Samira Ashkar - Senior Associate - Sydney
Samira holds a Bachelor of Laws and a Bachelor of Science (Psychology) from the University of Wollongong. She also has a Masters of Dispute Resolution from the University of Technology Sydney and has completed a Graduate Diploma in Legal Practice. Samira is admitted as a solicitor in New South Wales but is also highly experienced in Australian federal law areas...
Affray, Riot and Violent Disorder (NSW)
In New South Wales, the offences of affray, riot and violent disorder involve violent conduct towards other people, or property, where the offender deliberately causes, or intends to cause, injury or damage to someone. The victim does not actually have to be harmed by the accused but only needs to feel as though their personal safety is at risk. These offences can attract serious penalties.
Affray
The offence of affray occurs when a person uses, or threaten to use, unlawful violence towards another person, and where the accused’s conduct would cause an ordinary person to fear for their safety. The offence of affray is contained in section 93C of the Crimes Act 1900 (NSW).
If a person is found guilty of affray they are liable to up to 10 years imprisonment if dealt with by the District Court or a maximum of two years imprisonment if dealt with by the Local Court.
What must be proven?
A person is guilty of affray if they deliberately use, or threaten to use, unlawful violence against another person, which causes a person, or people, present to fear for their personal safety. Verbal threats alone are not enough. To constitute an affray, two or more people only need to be present and their conduct is taken into consideration both individually and collectively to determine the severity of the offence.
An example of an affray is a mass gathering of people who become violent in a public place and an onlooker believes their personal safety is at risk. That person does not necessarily have to be present at the scene for the charge to be laid.
Riot
A riot involves 12 or more people (a riot group) who are collectively using or threatening unlawful violence, and their conduct would cause fear for the personal safety of other people present. Riot falls under section 93B of the Crimes Act 1900.
A riot may occur in a public or private place. The riot group must all be present at the scene. It is not relevant whether or not the members of the riot group threaten unlawful violence simultaneously.
A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent. If a person is found guilty of riot they may be liable to 15 years imprisonment if dealt with by the District Court or a maximum of two years imprisonment if dealt with by the Local Court.
Violent Disorder
The offence of violent disorder is governed by section 11A of the Summary Offences Act 1988. The offence occurs when three or more people are using or threatening unlawful violence, and their conduct, as a group, would cause fear for the personal safety of other people present. The three or more offenders must be present at the scene; however, the victim need not be present.
An example of violent disorder would be damaging a vehicle with a baseball bat where the actions of the accused cause fear for the personal safety of another person.
If a person is found guilty of violent disorder they may be liable to up to 6 months imprisonment or a $1100 fine.
Defences available to Affray and Public violence offences
The defence of self-defence is the most common defence used in a charge of affray and public violence offences. For this defence to succeed, the accused would have to show that their actions were committed out of genuine fear for their personal safety and that they acted proportionately in the circumstances.
It also may be possible to mount a defence based on ‘necessity’ or ‘compulsion’, i.e. the accused’s involvement in the affray or public violence offence was the result of another consideration and that their actions were necessary to prevent greater harm from occurring.
The defence of duress (though rare) could also be argued to defend a charge of affray or public violence. This is when the accused argues that they were compelled to carry out the act that makes up the offence in response to an immediate threat to their life or of serious harm to themselves or another person and that the act was only carried out to avoid the threat of serious harm being carried out.
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