Riot – s 93B Crimes Act
Riot charges carry serious penalties and is a serious offence under the law.
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If you’ve been charged with the offence of Riot, call us now on 1300 365 075 to book a free first consultation with an experienced criminal defence lawyer.
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A riot occurs where:
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: s 93B(1) Crimes Act.
For a person to be convicted of the offence of riot, the prosecution is required to prove the following elements below beyond a reasonable doubt:
1. That the defendant was one of 12 or more persons present together use or threaten unlawful violence for a common purpose
It is apparent that for a person to be prosecuted of an offence of riot, they must have been “present together” with twelve or more persons when the use of threatened use of unlawful violence is alleged to have occurred and additionally, has engaged in such violence for a common purpose.
The ambit of the meaning of “present together” has been subject to close scrutiny, in that, it has been typically challenged whether the defendant need to be within close or immediate proximity of the other defendants when the unlawful violence has occurred.
In Parhizkar v R [2014] NSWCCA 2014 at [43], [44], [48] and [65]-[67], it has been held that the phrase “present together” should be accorded its ordinary meaning.
The phrase does not require the defendant to have been within close or immediate proximity of other rioters to have conducted the unlawful violence.
It is sufficient to establish that the demonstrate was in such a proximity to the other rioters so as to have been able to facilitate immediate assistance to those rioters should the need arise and have contributed to the violence which has prevailed.
The phrase “present together” is one which should not be considered in isolation from the remainder of the provisions under s 93B.
It was emphasised in Parhizkar that the phrase must be addressed coherently and harmoniously with the other elements of the provision to ensure proper application.
In applying such a provision harmoniously and coherently with the remainder of the provision, the prosecution must demonstrate that the defendant has further engaged in unlawful violence with a common purpose.
2. The conduct of the defendant was such that it would cause a person of reasonable firmness present at the scene to fear for his or her safety
In establishing this element, it must be demonstrated that the persons involved in the riot could have caused a “person of reasonable firmness to fear for his or her safety”.
It is irrelevant whether or not there was actually present any persons at the time the unlawful violence has occurred for a person to be charged of an offence of rioting (s 93B(4)).
The alleged unlawful violence is not limited to acts which occur in public venues and extends to unlawful violence which is alleged to have occurred in a private venue (s 93B(5)).
This is based on the well founded principles that no member of the public should need to fear for their personal safety when present in either the public space or in the confines of their own home.
The trier of fact will be required to undertake an assessment of the circumstances of the alleged offending conduct.
This will typically involve an assessment of the actual violence alleged, or alternatively, the threats of violence alleged to have been made by the defendant constituting the unlawful violence (s 93B(3)).
The unlawful violence need not have occurred simultaneously and may constitute dispersed unlawful acts (s 93B(2)).
3. The defendant intended to engage in the alleged unlawful violence
The prosecution must further demonstrate that the defendant held the requisite intention to use unlawful violence during their rioting.
In the absence of intention, it will be sufficient to demonstrate that the defendant was aware that their conduct may result in violent and unlawful conduct: s 93D(1), Regina v Saleh Khodr [2007] NSWDC 329 at [14] and Cotterill v R [2015] NSWDC 291 at [53].
Riot v Affray Overview
An offence of riot is similar to an offence of affray in that it requires more than one person (two (2) or more persons) to threaten unlawful violence towards another person and subsequently cause a person of reasonable firmness to fear for his or her personal safety (Crimes Act 1900 (NSW) s 93C).
Like a riot offence, an affray requires the defendant to have exhibited an exertion of unlawful violence, an intentional use of unlawful violence onto another person or that the defendant was merely aware that their conduct may have instilled fear of immediate physical violence in another person: Annakin v R (1988) 17 NSWLR 202.
The unlawful violence engaged in by the defendant, like a riot offence, is not limited to matters which have occurred in a public domain and may occur in a private setting (s 93C(5)).
The primary difference between the two offences is that the offence of riot requires the prosecution to demonstrate that there existed a common purpose amongst all of the offenders to engage in the unlawful conduct alleged to have occurred and in order for there to have been a riot there must have been twelve participants actively participating in the unlawful conduct alleged to have occurred.
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