At Chidiac & Associates, we provide experienced criminal defence representation to clients facing riot charges throughout Sydney and New South Wales. We carefully examine the circumstances surrounding the alleged incident, the conduct attributed to our client and the evidence relied upon by the Prosecution.

What is Riot?

Riot is an offence under section 93B of the Crimes Act 1900 (NSW).

Under section 93B, where 12 or more people who are present together use or threaten unlawful violence for a common purpose, and their conduct, taken together, would cause a person of reasonable firmness present at the scene to fear for their personal safety, each person who uses unlawful violence for that common purpose is guilty of riot.

The offence carries a maximum penalty of 15 years' imprisonment.

Riot may be committed in either a public or private place. The legislation also provides that the 12 or more people do not need to use or threaten unlawful violence simultaneously.

Elements of Riot

To prove a charge of riot, the Prosecution must establish each of the relevant elements beyond reasonable doubt.

1. Twelve or More People Were Present Together

The Prosecution must establish that at least 12 people were present together.

The requirement concerns the number of people involved in the relevant conduct. A person's mere presence at a large gathering does not, by itself, establish that they are guilty of riot.

The circumstances of the gathering, the conduct of the people involved and the person's own conduct must be carefully considered.

2. Unlawful Violence Was Used or Threatened

The people involved must have used or threatened unlawful violence.

The definition of violence in section 93A is broad. It includes violent conduct towards both people and property and is not limited to conduct which causes, or is intended to cause, injury or damage.

The legislation specifically provides that violence can include conduct such as throwing an object towards a person where the object is capable of causing injury, even where it does not actually hit the person.

The precise conduct alleged against the accused person is therefore important.

3. There Was a Common Purpose

The unlawful violence must have been used or threatened for a common purpose.

A common purpose does not necessarily have to be established through an express agreement between the participants.

Section 93B provides that the common purpose may be inferred from conduct.

This means that the Prosecution may rely upon the circumstances and behaviour of the people involved when seeking to establish the existence of a common purpose.

4. The Conduct Would Cause Fear for Personal Safety

The conduct of the 12 or more people, taken together, must be such that it would cause a person of reasonable firmness present at the scene to fear for their personal safety.

Importantly, the legislation does not require an actual person of reasonable firmness to have been present or actually to have experienced fear.

The question concerns the nature of the conduct and whether it would produce the relevant fear in a person of reasonable firmness.

5. The Accused Person Used Unlawful Violence for the Common Purpose

The legislation specifically provides that each person using unlawful violence for the common purpose is guilty of riot.

This is an important distinction.

The Prosecution must establish the accused person's involvement in the unlawful violence for the common purpose. Simply being present among a group of people is not, without more, the statutory test for liability.

What Are the Penalties for Riot?

Riot is a serious indictable offence carrying a maximum penalty of:

15 years' imprisonment.

There is no separate fine specified as the maximum penalty for the offence under section 93B. The statutory maximum is a term of imprisonment of 15 years.

The maximum penalty does not mean that every person convicted of riot will receive a sentence approaching 15 years. The sentence imposed in an individual case depends upon the circumstances of the offence and the offender.

Factors that may be relevant to sentence include:

• the accused person's level of participation;
• the nature and duration of the violence;
• whether weapons or dangerous objects were involved;
• whether people were injured;
• whether property was damaged;
• the accused person's role within the group;
• whether the conduct was spontaneous or planned;
• the accused person's criminal history;
• whether the accused pleaded guilty;
• the accused person's prospects of rehabilitation; and
• the accused person's personal circumstances.

Riot and Affray

Riot and affray are separate offences under Division 1 of Part 3A of the Crimes Act 1900 (NSW).

Affray under section 93C concerns a person using or threatening unlawful violence towards another person where the conduct would cause a person of reasonable firmness present at the scene to fear for their personal safety.

Affray carries a maximum penalty of 10 years' imprisonment. Where two or more people use or threaten unlawful violence, their conduct is considered together for the purpose of determining whether the relevant test is satisfied.

Riot, by contrast, specifically requires 12 or more people present together and unlawful violence used or threatened for a common purpose.

The distinction between the two offences can therefore be significant when assessing the Prosecution case.

Defending a Riot Charge

Being charged with riot does not mean that you are guilty. The Prosecution bears the burden of proving the elements of the offence beyond reasonable doubt.

Depending on the circumstances, potential issues in defending a riot allegation may include:

• fewer than 12 people were involved in the relevant conduct;
• the accused person was merely present at the scene;
• the accused did not use unlawful violence;
• the accused did not threaten unlawful violence;
• there was no common purpose;
• the accused did not participate in the alleged common purpose;
• the conduct has been incorrectly characterised as unlawful violence;
• the Prosecution cannot establish the necessary connection between the accused and the alleged violence;
• identification evidence is unreliable;
• CCTV or body-worn camera footage does not support the allegations;
• witness accounts are inconsistent;
• the Prosecution evidence does not establish the required elements beyond reasonable doubt.

The circumstances of large public gatherings can make identification particularly important. Police may rely upon CCTV, body-worn camera footage, photographs, mobile phone footage and other evidence to identify individual participants.

A careful examination of that evidence can be critical to determining whether the Prosecution can establish the conduct alleged against a particular accused person.

Riot Charges Arising from Protests and Demonstrations

Riot charges can arise in the context of protests or demonstrations where police allege that unlawful violence occurred.

However, participation in a protest does not, of itself, constitute riot.

The Prosecution must establish the specific requirements of section 93B, including the accused person's involvement in unlawful violence for the relevant common purpose.

Where a person was present at a protest but did not participate in the alleged unlawful violence, the distinction between presence and active participation may be particularly important.

The circumstances surrounding the protest, the conduct of individual participants, police directions, available video footage and the accused person's own actions should all be carefully examined.

Evidence in Riot Cases

Riot Prosecutions can involve substantial amounts of evidence, particularly where the alleged incident occurred in a large public gathering.

Evidence may include:

• CCTV footage;
• police body-worn camera footage;
• mobile phone recordings;
• photographs;
• police observations;
• witness statements;
• social media material;
• police radio communications;
• photographs taken during the incident;
• forensic evidence; and
• evidence concerning damage or injuries.

At Chidiac & Associates, we carefully examine the available evidence to determine what conduct can actually be attributed to the accused person.

Where identification is disputed, it may be necessary to examine the quality of the footage, the circumstances in which images were obtained and the reliability of any identification evidence.

How We Can Help

A riot charge requires detailed consideration of both the statutory elements and the evidence relied upon by the Prosecution.

At Chidiac & Associates, we provide:

• detailed advice about the allegations and applicable offence;
• analysis of the elements of the charge;
• review of CCTV, body-worn camera and other video evidence;
• assessment of identification evidence;
• analysis of witness statements and police evidence;
• representation at bail applications and court appearances;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials;
• advice regarding sentencing and potential penalties; and
• strategic advocacy focused on protecting your rights and interests.

Our approach is built on thorough preparation, careful analysis of the evidence and strong courtroom advocacy.