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Riot Offences and Penalties in South Australia (SA)

The information on this webpage is to be read in conjunction with this disclaimer:
Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

Riots are usually classified under public disorders and marked by disturbance to peace, threats to life and destruction to property. For this, any movement or gathering that may lead to rioting is curbed and vehemently opposed in South Australia.

The South Australian law authorises the Police and other statutory law enforcement authorities to use appropriate force when necessary to prevent or quell an uncontrolled movement/gathering.

If an individual is convicted for a riot offence, the offence will show up as a disclosable court outcome (DCO) on a police check.

  1. What is a Riot offence?

Although riots are considered random, haphazard and destructive gatherings or actions, the Criminal Law Consolidation Act 1935 (SA) provides technical descriptions.

Section 83B of the Act describes a Riot as;

A gathering of 12 or more people for a common purpose that includes any/all of;

  • Threats to a particular person or property,
  • Unlawful violence for any purpose,
  • Cause fear or intimidation to other entities.

It also includes conditions where any of these actions will constitute reasonable fear for life to any person. It does not matter that the group intended or recklessly caused any violence or destruction from a mob.

Subsections 1 – 8 of section 83B of the Criminal Law Consolidation Act 1935 (SA) lists other special conditions for Riots in South Australia.

  • ✔ The court does not consider it any different from the people gathered (12 or more) used or threatened the violent action simultaneously.
  • ✔ The court may also infer the set purpose of the group from the visible conducts/discussions.
  • ✔ There is no need for a person of reasonable firmness or mind to be present at the riot scene. The court can consider the act riotous if the conduct would have affected a person of reasonable firmness under normal circumstances.
  • ✔ The Act does not limit the offence of rioting to a public place; it can be committed in a private place, especially where the public may easily access it.
  • ✔ The Act may only find a person guilty of rioting if the evidence or arguments prove that the person intended to use violence or are aware in many ways about the violent conduct of the gathering.
  • ✔ The court may also convert a riot case to violent disorder if the evidence does not convince the former but the latter. The Summary Offences Act 1952 (SA) describes the cases where an offence of riot may be committed to other cases for violent or public disorder depending on the evidence available.

Penalty for Riot offences

A Court hearing for riot offences leads to individual sentencing even if the offence occurs in a gathering or group. Every participant in the riot or mob will be sentenced individually.

The maximum penalty for a riot offence is seven years imprisonment for a primary offence. However, with a circumstance of aggravation, the sentence can increase to 10 years imprisonment.

  1. The offence of Violent Disorder

The Summary Offences Act 1953 (SA) describes an offence of violent disorder where three or more people are gathered for a common purpose to;

  • ✔ Cause violence or other destructive actions
  • ✔ Threaten unlawful actions
  • ✔ Cause fear to personal safety through intentional or reckless results of their conducts.

The court still considers it a matter of violent disorder even if there is no reasonable firmness present at the scene. However, all three (or more) of the group must be present for their actions to constitute a violent disorder under the law.

The offence of Violent disorder includes any of these actions either to a person or property.

Penalties for Violent Disorder

A person found guilty of violent disorder faces penalties up to 2 years imprisonment and/or $10,000 in fines.

  1. Affray in South Australia

An affray charge is levelled where a person engages in conduct, action or supports any of such that would cause a person of reasonable firmness to fear. An affray offence includes where the accused person threatens or uses violence in a place that is regarded as public.

  • ✔ If two or more persons are indicted in the Affray case, it is their collective conduct in the matter that the court considers.
  • ✔ The court does not just consider threats as words alone; the prosecutor has to prove some capacity of the offender to carry out the danger.
  • ✔ In court, it does not matter that a person of reasonable firmness was present at the point of the offence or was likely to be there.
  • ✔ For this section and offence, the Affray offence may happen in a public space or private space. It is also considered a public space if anyone can easily access the space.
  • ✔ The court unconditionally finds a person guilty of an affray offence only if they threaten violence intentionally through any of their conditions.

An affray offence is usually dealt with summarily in a Magistrate court unless the court prescribes an imprisonment term of more than two years. The person must be sentenced in a District or higher court for that case.

Penalties for an Affray offence

An affray offence is a serious offence and may even lead to a chain of events leading to grievous offences like murder, death and manslaughter. Affray offences incur a minimum of 3 years imprisonment for a primary offence and five years imprisonment for aggravating circumstances to the offence.

  1. Disorderly Behaviour Offences in South Australia

Many actions can constitute a case of disorderly behaviour offence. All matters relating to disorderly behaviours are handled by the Summary Offences Act 1953 (SA) s7(1)(2).

Some examples of disorderly behaviours in Southern Australia include;

  • Riotous behaviours or actions,
  • Threatening a person in public,
  • Abusive, insulting or demeaning behaviours in public
  • Actions causing fear/injury like smashing a bottle on the road, shouting, threatening with fists.

Penalty for disorderly behaviour

The charge of Disorderly behaviour is usually handled summarily in a Magistrate Court. It is an offence that incurs;

  • $1,250 in fine amounts
  • Three months imprisonment term.

If the court considers such behaviour to be influenced by a group or to have a common purpose, it may be tried as a riot offence.

  1. Being Drunk in a Public Space

Although it is not an offence to be drunk in a public space, the Police may take necessary steps to stop them from causing any nuisance. The Public Intoxication Act 1984 (SA) provides several options to the Police or other authorised agencies to ensure the safety of the vicinity/ people and the drunk person.

The Police can;

  • Take them into custody,
  • Keep them at a sobering centre,
  • Take the person home

The Act allows the police to use reasonable force to search or secure dangerous objects or materials.

The “taking into custody’ does not translate to an arrest.

The drunk person cannot remain at a Police station for more than 12 hours. They can even be released sooner if they get sober earlier.

  1. Loitering offences

People can become paranoid if they find a person indiscriminately waiting, standing, scaling or monitoring them. Generally, it becomes difficult for other people if a person loiters or moves about in a premises without sufficient and legal reasons.

Also, it may be in the interests of the State or vicinity to stop people from loitering to prevent other disorderly actions.

To quell a loitering offence, the police can make a reasonable excuse that;

  • Where an offence is suspected to be committed or occur in the vicinity
  • Where there is a breach of peace by the person or group loitering
  • Where such loitering obstructs the free flow of pedestrians, motorists and other business
  • It may endanger the safety of a person or property.

The Police or any authorised officer can use the appropriate force to stop loitering. It is an offence to disregard or disobey a Police request to stop loitering.

  • The Act stipulates penalties of $1,250 in fine amounts
  • Three months imprisonment.

Legal terms the offences

The Criminal Law Consolidation Act 1935 (SA) and other legal guides provide accurate descriptions for most of these offensive acts for clarity and efficiency in a legal process.

  • ✔ Disorderly behaviour

It is a “Disorderly behaviour” to behave in an obscene, immoral, uncouth or uncivil manner in a public space or Police station. Some examples of disorderly behaviours are;

  • Where a person uses offensive languages
  • Disturbs the public peace
  • Acts in an obscene manner near a school
  • Acts dangerously in a public space or park

  • ✔ Violence

Section 83A of the Criminal Law Consolidation Act 1935 (SA) describes violence as the action or intent to cause unlawful damage or destruction to property or aimed towards a person. It also includes where the accused person used violent conduct to achieve the aim.

For this section, the actions include;

  • Throwing a missile,
  • Using a weapon,
  • Inducing and supporting the violent movement.

It also includes where any of these intended actions fall short of injuring the person.

Defences for a riot charge

There is little a person charged for riot can do to defend themselves, especially without legal counsel. However, the court may absolve the person of the actions if they can prove that;

  • They were reasonably unaware as to the purpose of the gathering or assembly.
  • They made reasonable efforts to dissociate from such a group after knowing the purpose.
  • The harm was a reckless action of other group members and was not part of the group's purpose.
  • There were less than 12 people in the group.
  • The actions would not cause a person of reasonable firmness to fear.

Will a Riot Offence in South Australia (SA) show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a Riot offence in South Australia (SA), the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a police check online via the Australian National Character Check - ANCC® website.

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