Riot charges are serious criminal offences under the Crimes Act 1900 (NSW). These laws are designed to maintain public order and safety by penalising violent or threatening group behaviour that causes fear or harm to others. Below is a breakdown of how these offences are defined and applied in New South Wales.

Definition of Violence – Section 93A

Under Section 93A, “violence” refers broadly to any form of violent conduct. This includes:

• Violence against property as well as people, except in the case of affray (Section 93C). 
• Actions not necessarily causing injury or damage, such as throwing an object capable of causing harm, even if it misses or does not make contact. 

This definition ensures that a wide range of threatening or dangerous behaviour may be addressed under the law.

Riot – Section 93B

A riot occurs when 12 or more individuals who are present together use or threaten unlawful violence with a shared purpose, and their collective conduct would cause a reasonable person to fear for their safety.

Key Elements:

• Number of people: At least 12 individuals must be involved. 
• Common purpose: The group must act with a shared intent, which can be inferred from their behaviour. 
• Violent conduct: Violence or threats must be unlawful (i.e., not legally justified). 
• Public fear: A reasonable person would feel threatened by the group’s behaviour. 
• Location: Riots can occur in both public and private settings. 
• Simultaneity not required: The 12 individuals do not need to act violently at the exact same moment. 
• Penalty: A person found guilty of riot faces up to 15 years imprisonment.
  

Mental State Required – Section 93D

To be convicted under these offences, certain mental elements must be proven:

• For Riot: The individual must have intended to use violence or been aware that their conduct might be violent.
  

Notably, the requirement for intention in a riot does not change the need for 12 individuals to be involved in the unlawful conduct.

Facing a riot charge in New South Wales is a serious legal matter that can carry significant penalties, including imprisonment. However, individuals accused of riot under Section 93B of the Crimes Act 1900 (NSW) may be able to raise a number of legal defences depending on the circumstances of the alleged offence.

Understanding these possible defences is crucial for anyone charged or at risk of being charged with a riot offence.

Possible Legal Defences Against a Riot Charge

Below are some possible defences when contesting a riot charge in NSW:

1. Disputing Involvement in the Group

One of the core elements of a riot charge is being part of a group of 12 or more people involved in unlawful violence. If the defence can establish that the accused was not present at the scene or was not part of the group acting with a common purpose, the charge may not stand.

2. Challenging the Number of People Involved

Under NSW law, a riot must involve a minimum of twelve individuals. If it can be shown that fewer than 12 people were actually involved in the alleged incident, the legal requirements for a riot may not be met.

3. Denying Violent or Threatening Conduct

The prosecution must prove that the accused either used or threatened unlawful violence. If there is insufficient evidence that the accused engaged in such behaviour, this may form the basis of a strong defence.

4. Arguing a Lack of Fear in a Reasonable Person

Another critical element of a riot offence is that the group’s conduct must be such that it would cause a person of reasonable firmness to fear for their safety. It can be argued that the behaviour was not sufficiently intimidating or threatening.

Additional Legal Defences

Depending on the context of the incident, other legal defences may be available, including:

• Necessity: Where the actions were taken to avoid a greater harm or emergency.
• Self-defence: If the accused acted to protect themselves or others from imminent harm.
• Mistake of Fact: Where the accused misunderstood a situation in a way that, if true, would have made their conduct lawful.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong-Yuan, paralegal.

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