When violence involves multiple people in a public place, police may charge individuals with affray and riot offences rather than assault. These charges recognise the broader threat that group violence poses to public order and safety, and they carry penalties that reflect the seriousness with which the law treats collective disorder.
At Kingston Fox, we regularly defend clients facing these serious allegations. Understanding the distinction between these charges and what the prosecution must prove is essential for anyone facing allegations of group violence.
What is affray?
The offence of affray is set out under section 93C of the Crimes Act 1900 (NSW). A person commits an affray if they use or threaten unlawful violence towards another person, and their conduct is such that it would cause a person of reasonable firmness present at the scene to fear for their personal safety.
The key elements are:
- Use or threat of unlawful violence
- Conduct that would cause a person of reasonable firmness present at the scene to fear for their safety
- The presence of other people, whether involved in the violence or merely present
The “reasonable firmness” element is an objective test. To determine this test, there does not need to be an actual person of reasonable firmness present. The question is whether such a person, if present, would have feared for their safety? This distinguishes affray from other assault and violence offences that require proof of actual harm or fear.
Affray can involve as few as one person using violence, provided the circumstances meet the test. However, it is most commonly charged when multiple people are involved in fighting or threatening behaviour in public.
What is a riot?
Riot is a more serious charge, set out under section 93B of the Crimes Act. A riot occurs when 12 or more people present together, use or threaten unlawful violence for a common purpose, and their conduct would cause a person of reasonable firmness to fear for their personal safety.
The defining features of a riot are:
- A minimum of 12 people are present together
- Use or threat of unlawful violence
- A common purpose shared by those involved
- Conduct that would cause a reasonable person to fear for their safety
The requirement of a common purpose is critical. The prosecution must prove that those involved shared an objective, whether that was to attack a particular person, defend territory, or engage in violence for another reason. The common purpose can be inferred from the circumstances and the conduct of those involved.
Riot charges are relatively uncommon and are typically reserved for large-scale public disorder such as organised brawls, protests that turn into physical violence, or situations involving significant threats to public safety.
Key differences between affray and riot
While both offences involve group violence and share similar elements, there are important distinctions:
| Features | Affray | Riot |
| How many people are involved? | One person or a small group | At least 12 people are present together |
| Is proof of common purpose required? | No | Yes |
| Maximum penalty | 10 years imprisonment | 15 years imprisonment |
| Common situations/in practice | Fights between small groups, pub brawls, street interactions | Large-scale disorder where the collective nature of the violence and shared purpose can be established |
Common defences and considerations
The first step to defending an affray or riot charge is to analyse whether the prosecution has sufficient evidence. It is important to remember that the prosecution must prove each element of the offence beyond a reasonable doubt.
Common defence strategies for affray include looking at the possibility of raising self-defence or demonstrating that the conduct would not have caused a reasonable person to fear for their safety, or showing that the accused was merely present and not involved in the violence.
For riot charges specifically, the defence may challenge whether a common purpose existed among those involved. The absence of a shared objective can be fatal to a riot charge.
In some cases, the defence may negotiate with police, suggesting that a lesser charge would be more appropriate.
Get legal advice from experienced criminal defence lawyers
Affray and riot charges are serious matters that can result in conviction and serious penalties. These cases often involve multiple witnesses and require a detailed analysis of events. Early legal advice is essential to understand the charges against you and the options available.
If you have been charged with affray, riot, or any other violent offence, speak with our criminal defence team for strategic advice and experienced representation. We understand how these cases are prosecuted and will work to achieve the best possible outcome.
The above information is general information only and does not constitute legal advice.
