Author: Phillip GibsonCriminal Defence Lawyer Phillip Gibson at our Sydney Office

Riot and Affray – an overview by Phillip Gibson, accredited criminal law specialist

Sydney has experienced a number of riot situations in recent years, starting notably with the Cronulla riots in 2006, followed by incidents in the western suburbs of Sydney, the Detention centre riots and the Bikie Riots at Sydney airport. A number of people have been charged with the offences of Riot and Affray arising from several incidents of civil unrest in various areas of Sydney.

History of the Offences

The offences of Riot and Affray were old common law offences which carried a maximum penalty of life imprisonment. In 1988 legislation was passed creating new statutory offences of Riot and Affray in the Crimes Act. Prior to 1988 there were very few prosecutions for either offence. The two famous cases up to that time were the Milperra shootings in 1984 (R v Annakin (1988) 17 NSWLR 202) and the Bathurst bike race riots in 1985 (Anderson v Attorney-General for NSW (1987) 10NSWLR 198). A useful history of the offences can be found in Colosimo and Ors v DPP (NSW) [2005] NSWSC 854.

When the new statutory offences of Riot and Affray were created in 1988 they had maximum penalties of 10 years and 5 years respectively. This remained unchanged until December 2005 when the maximum penalties were increased to 15 years for Riot and 10 years for Affray. This was a direct result of the civil unrest in Sydney at that time. Indeed the NSW parliament was recalled to make these changes and to change bail laws for these and other offences.

The Offences

Affray

(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.

(2) If 2 or more persons use or threaten the unlawful, it is the conduct of them taken together that must be considered fro the purposes of subsection (1).

(3) For the purposes of this section, a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

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 fer for his or her personal safety, each of the persons using inlawful violence for the common purpose is guilty of riot and liable to imprisonment for 10 years.

(2) It is immaterial whether or not the 12 or more person 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 public places.

Bail

In December 2005 the bail laws were changed for people accused of committing Riot or other offences during police lockdowns or large scale public disorder. The new law created a presumption against bail which makes it very difficult to get bail if you are charged with an offence in connection to a police lockdown or large scale public disorder. Many people have been bail refused as a result of these new laws. Mr Gibson acts for 6 people charged in connection with the public disturbances in Cronulla. All these clients have been granted bail.

In December Mr. Gibson obtained bail for a client at Penrith Local Court who was charged with having possession of objects to disguise himself during an Affray. The maximum penalty for this offence is 14 years and it fell within the new bail law.

In January Mr. Gibson obtained bail for another client charged with Riot and Affray arising from incidents at Cronulla in December 2005. This client was granted unconditional bail.

In February he obtained bail for a man who was carrying a bottle of petrol on a bus travelling towards Bondi. Another 3 of Mr Gibson’s clients are on bail charged with Affray arising from events at Cronulla in December 2006.

On 27 January 2006 Sully J in the Supreme Court granted bail to Mr Newby. This is the first case where the new bail laws were tested in the Supreme Court. This case highlights many of the problems with cases being driven by the media and political interference in the justice system.

Conclusion

As a result of a small number of incidents the government rushed through new bail laws. These law mean that a number of people are now locked up and there is no certainty that at the end of the day they will be found guilty or receive jail sentences.

The police are charging people with offences so that they fall within the new bail laws and in some cases arguing for refusal of bail without even considering the merits of the case. Anyone charged with Riot, Affray or any offence connected with the incidents on Cronulla or elsewhere needs to have expert legal representation to fight for bail.