A charge of ‘affray’ contrary to section 93C of the Crimes Act 1900 is often used by police against people involved in some form of public disorder. If a person uses or threatens unlawful violence, whether to persons or property, and the conduct is such that would cause a reasonable person to fear for his personal safety, then they are guilty of affray.

The maximum penalty for affray is a term of imprisonment of 10 years. Due to the plain language of the legislation, police have included private environments as well as public in their scope when laying this charge. The context of the affray will be taken into account by the courts when determining whether a reasonable person would have felt fear.

A charge of ‘riot’ contrary to section 93B of the Crimes Act 1900 is typically evoked to control unruly protestors, but can also be applied to a range of unlikely scenarios. The law provides that where 12 or more persons who are present together use or threaten unlawful violence for a common purpose, and the conduct of them is such that would cause a person of ‘reasonable firmness’ to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.

The maximum term of imprisonment for riot is 15 years. Importantly, there is no requirement that a person ‘of reasonable firmness’ actually be at the scene and be reasonably fearful. A court is considering the specific context, and placing into that context the values of a ‘reasonable person’ to determine whether the offenders will be guilty of an offence. A charge of ‘riot’ can be committed in a private place as well as public, for example at a private party or venue.