Criminal law
Affray, riot and violent disorder
Public order charges arising out of a fight, a brawl or a group disturbance. Police reach for these when they cannot pin a particular blow on a particular person, which means the case often turns on identification and on what the footage actually shows.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Available to attend police stations and to advise by phone. Contactable outside business hours.
If you have just been charged, or police want to talk to you. You are not obliged to take part in an interview, and in a group disturbance matter an interview very often does more harm than good, because explaining your own conduct usually places you at the scene and describes what everyone else was doing. Say you want legal advice first. Do not post about it, do not discuss it in group chats, and do not contact other people who were there.
Preserve the footage now. Pub, club and street CCTV is routinely overwritten within weeks, and it is frequently the evidence that separates the person who threw a punch from the person who was standing nearby. If there is footage that helps you, it needs to be requested immediately. This is the single most time-critical thing in these matters.
The three offences compared
They overlap, and police sometimes charge more than one in the alternative. The differences are the number of people involved, which Act creates the offence, and which court can deal with it.
| Affray | Riot | Violent disorder | |
|---|---|---|---|
| How many people | One is enough | Twelve or more, present together | Three or more, present together |
| Common purpose needed | No | Yes | No |
| Where it sits | Crimes Act | Crimes Act | Summary Offences Act |
| Maximum penalty | 10 years | 15 years | 6 months, or a fine, or both |
| Which court | Local Court unless the prosecution elects, and then the District Court | Local Court unless the prosecution elects, and then the District Court | Local Court only |
| Local Court maximum | 2 years | 2 years | 6 months |
Most affray matters stay in the Local Court. Whether the prosecution elects to have a matter dealt with on indictment is a significant issue in itself, and it is worth having someone experienced dealing with the prosecutor early rather than after the election is made.
Affray
Affray is committed where a person uses or threatens unlawful violence towards another, and their conduct is such as would cause a person of reasonable firmness present at the scene to fear for their personal safety. It is typically charged after a public fight or brawl.
Police and prosecutors use it heavily in circumstances where they cannot prove an assault, or cannot attribute particular actions to particular people. In a melee involving several people, affray is often the charge that survives when the assault charges do not.
What has to be proved
- You used or threatened unlawful violence towards another person
- Your conduct would cause a hypothetical person of reasonable firmness present at the scene to fear for their personal safety. Nobody of reasonable firmness actually has to have been present, and no real person needs to have been frightened
- You intended to use or threaten violence, or were aware that your conduct may be violent or threaten violence
Two points that matter in practice
- Words alone are not enough. A threat made only by words cannot amount to affray. There has to be conduct.
- It can happen anywhere. Public or private. A fight in a house, a car park or a licensed venue all qualify.
Maximum penalty 10 years. In the Local Court, where these matters usually stay, the maximum is 2 years.
Riot
Riot requires twelve or more people present together, using or threatening unlawful violence for a common purpose, where their conduct taken together would cause a person of reasonable firmness present at the scene to fear for their personal safety.
What has to be proved
- Twelve or more people were present together
- They used or threatened unlawful violence for a common purpose. The common purpose can be inferred from their conduct and does not have to be spoken or agreed in advance
- You were one of the people using unlawful violence for that purpose
- The conduct of the group taken together would cause a person of reasonable firmness present at the scene to fear for their safety. Again, nobody of reasonable firmness needs to have actually been there
- They did not all have to act at the same moment
The number is where these cases are won and lost. Twelve is a hard requirement, and it means twelve people using or threatening violence for the common purpose, not twelve people present. Bystanders, people filming, people trying to break it up and people too far away to be part of the same group do not count. Where the prosecution cannot make up the twelve, the charge fails, though a lesser charge usually replaces it.
Maximum penalty 15 years, and 2 years where the matter is dealt with in the Local Court.
Violent disorder
Violent disorder sits in the Summary Offences Act rather than the Crimes Act, and it fills the gap between affray and riot. It requires three or more people present together using or threatening unlawful violence, where their conduct taken together would cause a person of reasonable firmness present at the scene to fear for their personal safety.
- Three or more people present together, which means you and at least two others
- No common purpose is required, unlike riot
- They do not have to act simultaneously
- You intended to use or threaten violence, or were aware your conduct may be violent
- Public or private place, and again no person of reasonable firmness needs to have actually been present
This is a summary offence and it stays in the Local Court. The maximum is 6 months imprisonment, a fine, or both. It cannot be sent to the District Court, and it does not carry the 2 year maximum that applies to affray and riot dealt with summarily. That makes it a materially less serious charge than the other two, and where the facts fit it, negotiating a charge of violent disorder in place of affray is often the single most valuable thing that can be achieved in one of these matters.
Defences and issues we look for
It was not you
Identification is the recurring problem in group disturbances. Poor lighting, similar clothing, footage from a distance, and witnesses who saw a fight rather than a person. Where identification is the case against you, it is worth testing properly.
Self-defence
Where you were defending yourself or someone else, and the response was reasonable in the circumstances as you perceived them. Once raised, it is for the prosecution to disprove. This is common in these matters and frequently under-run.
You were there but not in it
Presence is not participation. Standing nearby, filming, shouting, or trying to separate people is not using or threatening unlawful violence, though police sometimes charge everyone present and work it out later.
The element is not made out
No conduct beyond words, for affray. Fewer than twelve participants, for riot. Fewer than three, for violent disorder. Or conduct that would not cause a person of reasonable firmness to fear for their safety.
The mental element
You must have intended to use or threaten violence, or been aware your conduct might be violent. This can be a live issue where intoxication, confusion or a fast-moving situation is involved.
Duress or necessity
Less common, but available where you acted under threat or in circumstances of genuine emergency.
Even where a plea of guilty is the right course, there is usually work to be done on the facts. The police fact sheet is the document the court sentences on, and negotiating what it says, or which charge it supports, frequently matters more to the outcome than anything said in submissions.
What is at stake beyond the penalty
- A criminal record. A conviction is recorded and disclosed on a national police check, which affects employment, particularly anywhere requiring a working with children check, a security licence or a professional registration.
- Travel. A conviction for a violence offence can affect entry to some countries, the United States among them.
- Licensing and employment. Security, transport, aviation, health and teaching roles all have their own consequences that follow a violence conviction, sometimes automatically.
- A related AVO. Public order charges are often accompanied by an application for an order, which carries its own conditions and its own consequences. More on responding to an AVO.
These are the reasons a non-conviction outcome is worth fighting for even where the facts are not seriously in dispute.
Sentencing options in NSW
Get advice before pleading guilty to anything. A well-prepared sentencing is what produces the best available outcome, and the court can impose any of the following.
Dismissal without conviction
An order that no conviction is recorded and no further penalty applies. The matter is finalised as you leave the court.
Conditional release order
A bond, available with or without a conviction, and supervised or unsupervised at the court’s discretion. The standard conditions are to commit no further offence and to appear if called on. Further conditions can be added, including rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed, and the matter is finalised immediately.
Fine
Can be imposed alone or alongside a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement action, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, used where a fine or bond is insufficient, and available for up to three years. Supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision and conditions, which can include home detention, electronic monitoring, curfews and community service. It is not available for some offences. Breaches go to the State Parole Authority rather than the court, and often result in serving the balance in custody.
Full-time imprisonment remains available for affray and riot, and the court must consider whether any alternative is appropriate before imposing it.
Common questions
I did not hit anyone. Can I still be charged with affray?
Yes. Affray covers threatening unlawful violence as well as using it, and it does not require anyone to have been injured or even frightened. That said, presence at a fight is not the same as participation, and where you were not part of the violence that is a matter to be run rather than conceded.
Will I go to gaol?
For a first offence arising from a one-off incident, usually not, though it depends heavily on the seriousness of the conduct, any injuries, whether weapons were involved and your record. Affray is a serious charge and full-time imprisonment is available, which is why the preparation matters. We will give you a realistic view early rather than a comfortable one.
Should I do a police interview to explain my side?
Take advice first. In group disturbance matters an interview very often hurts, because to explain your own conduct you place yourself at the scene, describe the incident and identify others. Whatever you say becomes evidence. Declining an interview is not evidence of guilt.
Everyone got charged. Does that help me?
It can. Where police have charged a group without distinguishing between them, that is a weakness, and the case against each person still has to be proved individually. It also means the evidence is often thinner against some people than others, and identifying which of those you are is the first task.
Can the charge be reduced?
Frequently, yes. Negotiating with the prosecution about the charge and about the facts is a substantial part of this work. Moving from affray to violent disorder is a significant reduction, because it takes the matter out of the Crimes Act and drops the maximum from ten years to six months.
What should I do about CCTV?
Tell us immediately if you think there is footage. Venue and street cameras are commonly overwritten within a few weeks, and once it is gone it is gone. If footage would help you, it needs to be requested straight away, and that is one of the first things we do.
Can I get a non-conviction?
It is possible, and it is worth pursuing given the effect of a violence conviction on work and travel. The court looks at the seriousness of the conduct, your character and record, and what you have done since. Material such as references, evidence of counselling and evidence of steps taken about alcohol carries real weight when it is prepared properly.
What should I bring to the first appointment?
The court attendance notice, the police fact sheet if you have it, any bail conditions, and anything you have kept such as messages, photographs or the names of witnesses. If you have none of it, come anyway.
Get advice before the first mention
Alicia prosecuted criminal matters for over eight years before moving to defence, which means we know how these briefs are put together and where they are weak. Call us before you speak to police, before you plead, and while the footage still exists.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across Sydney and in the District Court. Courts we appear in.