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Chapter 53: Riotous or Disorderly Manner

Table Of Contents  

[53.0] Introduction 

This chapter will examine the offence of 'Behaving In A Riotous Or Disorderly Manner' as provided for by section 175(d) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Vagrancy Act 1824 (UK), section 3.

[53.1] Offences 

Section 175(d) of the Penal Code (Ch. 26) states: 

'The following persons – 

[…] 

(a)                any person […] who, in any public place, behaves in a riotous or disorderly manner, and every person who in any other place whatsoever assembles together with others and while so assembled behaves in a riotous or disorderly manner, 

[… is] deemed idle and disorderly persons […].' [word in brackets added]

[53.2] Wording Of Charges

[53.2.1] Public Place 

'[Name of Defendant] at [Place] on [Date] did behave in a [riotous or disorderly] manner in a public place namely [specify the name of the public place].'

[53.2.2] Any Place 

'[Name of Defendant] at [Place] on [Date] assembled with others and while so assembled did behave in a [riotous or disorderly] manner.'

[53.3] Elements

[53.3.1] Public Place 

A. Defendant 

B. Place 

C. Date 

D. Behave 

E.         [i] Riotous; or 

[ii] Disorderly

Manner 

F. Public Place

[53.3.2] Any Place 

A. Defendant 

B. Place 

C. Date 

D. Assembled With Others 

E. While So Assembled Did Behave 

[i] Riotous; or 

[ii] Disorderly

Manner

[53.4] Riotous Manner 

The term 'Riotous Manner' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include any behaviour which uses force or violence.

[53.5] Disorderly Manner 

The term 'Disorderly Manner' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Police v Christie [1962] NZLR 1109] Henry J said at page 1113: 

'To behave in a disorderly manner, is accordingly, to act in a manner which contravenes good conduct or proper conduct. The behaviour in respect of which the section speaks is behaviour in a public place, so it becomes simply a question whether or not the behaviour in a public place seriously offends against those values of orderly conduct which are recognised by right – thinking members of the public. There are certain manifestations of conduct in a public place which are an affront to and an attack upon recognised public standards of orderly behaviour which well – disposed persons would stigmatise and condemn as deserving of punishment. The standard fixed ought to be reasonable and such as not unduly to limit freedom of movement or speech or to impose conditions or restrictions that are too narrow. The conduct must be serious enough to incur the sanction of a criminal statute. A conviction ought not to be entered unless the conduct or behaviour is such that it constitutes an attack upon public values that ought to be preserved. […].' (emphasis added) 

In Melser v Police [1967] NZLR 437 McCarthy J commented in relation to the offence of 'Disorderly Conduct' at page 446: 

'I agree that an offence against good manner, a failure of good taste, a breach of morality, even though these may be contrary to the general order of public opinion, is not enough to establish this offence. There must be conduct which not only can fairly be characterized as disorderly, but also is likely to cause a disturbance or to annoy others considerably. 

[…] 

Moreover it seems to me that the test for determining whether or not behaviour is "disorderly" is objective, albeit the conduct in question must, of course, be looked at in all of the circumstances of the case.' (emphasis added) 

See also: King (1996) 88 ACrimR 150 at pages 155 – 157 & Austin & others [1939] SASR 130.

[53.6] Public Place 

The term 'Public Place' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court.' (emphasis added) 

The term 'Public Way' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any highway, market place, square, street, bridge or other way which is lawfully used by the public.' 

Whether or not a place is a 'public place' is a question of fact for the magistrate, to determine upon the circumstances of the particular case. To proceed to conviction, the magistrate must be satisfied 'beyond reasonable doubt' that the place in question is a 'public place', see McAneny v Kearney, Ex Parte Kearney [1966] QdR 306, per Stable J at page 313. 

See also: Williams v Director of Public Prosecutions (1992) 95 CrAppR 415 & In The Appeal of Camp [1975] 1 NSWLR 452.

[53.7] Sentencing 

The jurisdiction of the Courts in respect of this offence is examined commencing on page 14. 

Section 175 of the Penal Code (Ch. 26) provides that upon a defendant being found guilty under that section is 'liable to imprisonment for two months or to a fine of twenty dollars.' 

Refer also to the law relating to 'Residence Orders' commencing on page 947. 

The law relating to 'Sentencing Generally' is examined commencing on page 918.

[53.8] Related Offences 

The following are offences which are related to the offence of 'Riotous Or Disorderly Manner': 

·                     'Drunk & Disorderly', section 175(c) of the Penal Code (Ch. 26) which is examined commencing on page 875; and 

·                     'Using Threatening, Abusive, Insulting Words Or Behaviour', section 178(n) of the Penal Code (Ch. 26) which is examined commencing on page 886; 

·                     'Threatening Violence', section 89 of the Penal Code (Ch. 26) which is examined commencing on page 906; 

·                     'Criminal Trespass', section 189(1) of the Penal Code (Ch. 26) which is examined commencing on page 502; 

·                     'Carry Firearm Whilst Drunk Or Disorderly', section 41 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 859; 

·                     'Threatening Violence With Firearm', section 42 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 862; and 

·                     'Affray', section 87 of the Penal Code (Ch. 26).