Public order offences are wide-ranging and those at the gravest end of the spectrum can attract serious penalties. They include the deliberate use or threat of violence toward another person, offences committed by groups of people and lesser offences like begging and drunkenness.

Nott and Co Lawyers have a deep understanding of NSW’s public order legislation and will help you navigate and robustly defend charges of affray, violent disorder and more.

Public order offences generally refer to matters that have caused disruption, disorder or nuisance in a public place. They include things like drunkenness, use of offensive language, loitering, the use of laser pointers, rioting and begging. Laws related to public order are designed to help police keep the peace.

Low-level public order offences are generally dealt with in the Local Court. More serious offences are dealt with in the District or Supreme Court.

The prosecution must prove Public Order Offences beyond reasonable doubt:

• The alleged conduct happened in a public place, and
• That the accused was the person responsible for the offence, and
• That the accused intended to commit the offence and
• That the act interfered with, or was likely to interfere with, a member of the public’s use or enjoyment of a public place.

Low level public order offences may attract a fine, good behaviour bond or curfew, but more serious offences (for example wielding a knife in a public place or school) could result in fines up to $5,500 or 2 years in prison.

Defences available in offences of public order include:

Reasonable excuse: There was a reason you acted in the way you did that would be considered acceptable by a reasonable person.

Identity: Since many public order offences take place in crowded areas, it might be difficult to prove you were the person who committed the offence.

Offence: Your legal team might argue the behaviour was not offensive.

Affray refers to situations where unlawful violence is used, or threatened, towards another person to the extent it would cause an ordinary person to fear for their safety. A verbal threat alone does not constitute affray. Examples of affray include fighting in a pub, road rage and being involved in a violent protest.

Charges of affray are generally dealt with in the Local Court, but the defence or prosecution can elect to have them moved to the District Court.

The prosecution must prove this Public Order Offence beyond reasonable doubt and that the accused:

• Used or threatened unlawful physical violence towards another person or towards property, and
• Engaged in conduct that would have caused a person of ‘reasonable firmness’ to fear for their safety, whether or not they were present.

The maximum penalty for affray is 10 years’ imprisonment if the case is heard in the District Court and a maximum of 2 years in the Local Court.

A range of penalties are available to the court. In all cases, penalties depend on the facts of your case and the effectiveness of your legal team in explaining your circumstances.

Defences available in offences of affray include:

Duress: If you were unlawfully coerced into involvement in affray through serious threats you believe put you or your family at risk, you may be deemed to be acting under duress.

Necessity: If you, another person or your property was at imminent risk and you were involved in the affray only to avoid that risk, and because you believed there was no alternative, you may have a necessity defence.

Self-defence: Unlawful violence was used by the accused only to protect themself, their property or another person, or to prevent criminal trespass.

Violent disorder charges can be made where three or more people use unlawful violence, or cause someone to fear unlawful violence, to a person or property. Each of the three accused must have used or threatened violence, but the complainant need not be present. For example, if four people attacked a building with a steel pole, it would be an act of violent disorder even if the building was empty at the time.

The prosecution must prove this Public Order Offence beyond reasonable doubt and that:

• Three or more persons used or threatened unlawful violence, and
• The threat or use of unlawful violence would cause a person of ‘reasonable firmness’ who was present at the scene to fear for his or her safety, whether or not they were actually there.

The maximum penalty for the Public Order Offence of violent disorder is a fine of $1,100 or 6 months imprisonment.

In all cases, penalties depend on the facts of your case and the effectiveness of your legal team in explaining your circumstances. Strong representation may result in only a fine.

Defences available in offences of violent disorder include:

Self-defence: In a case of self-defence, unlawful violence was used by the accused only to protect themself, their property or another person, or to prevent criminal trespass. The reaction by the accused must be proportionate to the circumstances.

Duress: If you were unlawfully coerced into involvement in violent disorder through serious threats you believe put you or your family at risk, you may be deemed to be acting under duress.

Necessity: If you, another person or your property was at imminent risk and you were involved in the violent disorder only to avoid that risk, and because you believed there was no alternative, you may have a necessity defence.