Published by Geoff Harrison | 2 June 2024
The offence of riot is where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.
The offence of riot had its origins in the English common law offence until the passing of the Riot Act 1715 when it was passed into legislation. Under the then legislation, the riotous and tumultuous assembly had to be warned in the prescribed form and then given one hour to disperse before the offence was committed, hence, the colloquial phrase, "read the Riot Act" (see Hinton). The legislative history of Riot and Affray in NSW was discussed by Johnson J in Colosimo at [11].
The decision of Parhizkar v R [2014] NSWCCA 240 involved a riot at Villawood Immigration Detention Centre on 20 April 2011. Some of the offenders, including Parhizkar, were on the roof of the building and throwing tiles towards security whilst others protested peacefully; whilst some offenders on the ground provided supplies and encouraged those on the roof, with some also threatening unlawful violence. The issues in the appeal were (1) whether there were 12 or more persons, present together, using or threatening to use unlawful violence, for a common purpose, and (2) whether the applicant used unlawful violence.
From the decision of Parhizkar:
The mental element is identified in the following terms:
93D Mental element under sections 93B and 93C
(1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.
(2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
(3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.
There are four elements of the offence of riot which differ from that of affray. First, a person can be guilty of affray when acting alone: there is no requirement for 12 or more persons to act together for a common purpose. Secondly, while both offences require that the conduct of the person charged must cause a person of reasonable firmness to fear for his or her personal safety, for affray that must be achieved by the conduct of the accused alone, whereas riot requires the composite effect of the conduct of 12 or more persons. Thirdly, for an affray, the unlawful violence must be directed towards another person; with respect to riot, violence includes violent conduct towards property as well as towards persons: s 93A(a). Fourthly, riot requires that the accused use unlawful violence; for affray, a threat of violence is sufficient [7].
On the issue of, "present together" Price J stated at [89] - [90]:
The directions on the phrase “present together” given by the trial Judge find support in Regina v W(N) [2010] EWCA Crim 404; [2010] 1 WLR 1426, a judgment of the English Court of Appeal. When considering the phrase “present together” in s 2 of the Public Order Act 1986, the Court (Lord Justice Moore-Bick, Mr Justice Silber and Mr Justice Kenneth Parker) said at [23]:
“In our view it is intended to denote nothing more than being present in the same place. It is unnecessary in this case to attempt to define it with any greater precision, since it was undoubtedly open to the jury on the evidence before them to find that there was a time when the appellant and at least two members of the crowd were in the same place using or threatening violence. In any event, however, we think that it would be undesirable to attempt to do so. The phrase consists of ordinary words which must be given their ordinary meaning. If a question arises whether the defendant and others who are said to have used or threatened violence were present together (which we think is unlikely to arise in many cases) the jury should be told that the question is one of fact and that they should give the words their ordinary meaning: see Brutus v Cozens [1972] UKHL 6; [1973] A.C 854.”
Although the facts in NW were more straightforward than in the present case, it appears to me that the phrase “present together” in s 93B was intended to have its ordinary meaning. There is nothing to suggest that these words are intended to be used in any unusual sense. In my respectful opinion, the trial Judge’s directions adequately identified the principles to be applied.
Whilst Johnson J would have allowed the appeal in relation to ground 1, in that the directions were not clear enough regarding proximity, the number of persons present, and whether they together used or threatened unlawful violence, McCallum J agreed with Price J that further clarification of the principles was unnecessary; hence, the appeal was dismissed.
Other Sources:
Cases:
Extracted Legislation:
CRIMES ACT 1900 - SECT 93A
Definition
In this Division--
"violence" means any violent conduct, so that--
(a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and
(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).
CRIMES ACT 1900 - SECT 93B
Riot
(1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.
(2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.
(3) The common purpose may be inferred from conduct.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Riot may be committed in private as well as in public places.
CRIMES ACT 1900 - SECT 93D
Mental element under sections 93B and 93C
(1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.
(2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
(3) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.
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