Part 3A of Crimes Act 1900 (NSW) consists of Sections on the offence of riot and affray. Division 1 under Part 3A consists of the following sections on riot and affray:
Riot and affray in NSW are serious offences, attracting severe penalties. Riot and affray are both legal terms related to public disturbances, but they have slightly different meanings:
- Riot: A riot occurs when a group of people engage in violent or disorderly behaviour in a public place, causing fear, harm, or damage to property. Riots often involve a larger group of individuals and can include actions like vandalism, violence against others, or destruction of property. Rioting is a serious offence in many legal systems.
- Affray: Affray is similar to a riot but typically involves fewer people. It refers to a public disturbance where two or more people engage in fighting or violent behaviour that causes fear and disrupts the peace. Unlike a riot, affray may involve a smaller number of individuals and might not necessarily result in widespread violence or property damage.
Both riot and affray are criminal offences and can result in legal consequences such as fines or imprisonment, depending on the severity of the disturbance and the laws of the jurisdiction where the incident occurred. In this article we discuss relevant Sections under the Crimes Act 1900 (NSW).
Section 93A: Definition under Division 1 (Riot and Affray)
This section defines “violence” as any behaviour involving violent actions. This encompasses conduct directed at both property and individuals, and it’s not limited to actions causing harm or damage. For instance, it covers violent behaviour like throwing objects capable of causing injury, even if those objects miss or fall short of their target.
Section 93B: Riot
This section defines a riot as the situation where 12 or more people gather together and use or threaten violence unlawfully for a shared goal. If their collective behaviour would reasonably make someone at the scene fear for their safety, each person involved in the unlawful violence for that common purpose is guilty of riot and could face imprisonment for up to 15 years.
Some key points:
- The simultaneous use of violence by the 12 or more individuals is not necessary for it to be a riot.
- The shared goal or common purpose can be deduced from their actions.
- It doesn’t matter if a person of reasonable firmness is actually present or likely to be present at the scene for it to be a riot.
- A riot can occur in private as well as in public places.
Section 93C: Affray
This section defines affray as the situation where a person uses or threatens violence unlawfully towards another in a way that would make a reasonable person at the scene fear for their safety. If someone engages in such conduct, they are guilty of affray and could face imprisonment for up to 10 years.
Key points include:
- If two or more people are using or threatening unlawful violence, their collective behaviour is considered for determining affray.
- Mere words, without any accompanying actions, don’t constitute a threat for the purposes of this section.
- Similar to the previous section on riot, the presence of a person of reasonable firmness at the scene is not necessary for it to be affray.
- Affray can occur in both private and public places.
Section 93D: Mental Element Under S93B and S93C (Riot and Affray)
Section 93D outlines the mental element—what a person must intend or be aware of—to be considered guilty of riot or affray.
- A person is guilty of riot if they either intend to use violence or are aware that their behaviour may become violent.
- A person is guilty of affray if they intend to use or threaten violence or are aware that their conduct could become violent or threatening.
Importantly, subsection (1) specifies that in cases of riot, the determination of the number of individuals using or threatening violence is not affected by the mental element described earlier in the section.
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