The offence of Assault Police is an aggravated form of assault. It is a serious offence that carries a more severe penalty than a common assault because the assault is carried out on a police officer acting in the execution of their duty. In carrying out their duties, the law assumes that police are in a vulnerable position. Section 60 Crimes Act 1900 sets out the legislative provisions for this offence including a maximum penalty of 5 years imprisonment if dealt with on indictment.
The offence of Resist Arrest (also known as Resist Police) occurs when a person resists the actions of a police officer in the lawful execution of their duty. Section 546C Crimes Act 1900 sets out the offence and penalty which includes a maximum period of imprisonment for 12 months or a fine of up to 10 penalty units or $1,100.
The offence of Hinder Police is also found at Section 546C Crimes Act and carries the same penalty as Resist Police. It is an offence to resist, hinder, or incite any person to assault, resist or hinder a police officer in the execution of their duty.
It is common to find that a person who is charged with Assault Police is also charged with Resist Arrest and often Offensive Language – in fact this combination of charges is so common it is known as the ‘trifecta’ by criminal defence lawyers because of the frequency in which these charges are laid in this combination.
The reasons for these multiple criminal police charges are obvious. A person who either does not want to be arrested, or objects to the manner or force used by police may well resist the actions of police. In doing so, police may add the second charge. If the person expresses their feelings using swear words, police might add the third charge.
There are a number of defences to each of the abovementioned charge. The question often arises in Assault Police, Resist Police and Hinder Police charges about whether police were acting in the lawful execution of their duties at the time of the incident. Police are not lawfully acting if they were acting unlawfully – for example if they were assaulting the person without lawful excuse.
Thanks to CCTV footage and the ability of mobile phones to record videos, the public are being made aware of the many examples of police arresting in packs, using check drills which often involve the violent pushing to the chest of a person, tackling to the ground or tripping or forcing them to the ground when it appears totally unnecessary to do so, using capsicum or OC spray, taser, batons or drawing firearms when there is no threat of resistance or lethal force. Little wonder that some people attempt to defend themselves when it is perceived that police are being unnecessarily aggressive.
In relation to offensive language charges (Section 4A Summary Offences Act 1988), police views on what is offensive may not necessarily accord with community standards or the common use of such language. For example, four letter words are regularly heard on television, movies, in print media, on radio and used in school playgrounds. It does not mean that the use of such language should be condoned, but whether or not such language is offensive will largely depend on what is said and the prevailing circumstances of where and how it was said – eg. near a school or church rather than on the football field.
Offences involving police officers are serious but can be successfully defended. Whether you want to plead guilty or not guilty, Nyman Gibson Miralis offer 24/7 legal advice for urgent police matters from one of our criminal law accredited specialists. We have offices in Sydney and Parramatta and travel to all courts across NSW.
An assault occurs where a person intentionally or recklessly causes another person to fear immediate violence, which may or may not involve the use of force. Force can include hitting, punching, striking, kicking, pushing, poking, touching or indeed any application of force – it does not matter whether it is soft or hard or whether injury occurs.
Assault Police is an aggravated form of assault. A person does not need to have been aware that the victim was a police officer in order to be charged. The offence is aggravated further if committed during a public disorder or if the assault results in actual bodily harm. In these circumstances even more severe penalties apply.
The police officer does not have to have been on duty (i.e. in uniform) at the time of the alleged assault. Even if the police officer was off-duty and failed to state that they were a police officer, a person may still be charged. The police officer must, however, have been acting in the execution of their duty at the time of the alleged assault. If they were not then the charge may be successfully defended.
It is an offence to resist or hinder, or incite anyone to assault, resist or hinder a police officer in the execution of their duty, which includes making lawful arrests.
Active resistance is required for a charge of Resist Arrest to be laid. Merely lying down and refusing to cooperate, or running away from a police officer before a valid arrest has been made, does not constitute Resist Arrest – though it may amount to Hinder Police.
A person can also be charged with this offence if they assist or incite somebody to resist arrest, or hinder an officer in the execution of their duty. To ‘hinder’ is to render an action of the police officer more difficult but not impossible.
The police officer does not have to have been on duty (i.e. in uniform) at the time of the alleged resistance. Even if the police officer was off-duty and failed to state that they were a police officer, a person may still be charged. The police officer must, however, have been acting in the execution of their duty at the time of the alleged resistance. If they were not then the charge may be successfully defended.
What does “in the execution of duty” mean?
In cases involving Assault Police, Resist Police and Hinder Police charges it must be proved that the police officer was acting in the execution of their duty. If they were not, the offence will be invalid, however the offence of Assault may still apply.
The scope of a police officer’s duty has been broadly interpreted as including anything that can fairly and reasonably be regarded as the carrying out of a police officer’s duty. There are circumstances, however, in which the police officer cannot be said to be acting in the execution of his or her duty. For example, if a police officer illegally arrests a person or uses excessive force he is not acting in the execution of his duty.
Defences to Assault Police and Resist Arrest
Offences involving police officers are serious but can be successfully defended. The prosecution must prove that at the time of the alleged assault or resistance the police officer was acting in the execution of their duty. In some cases a defence of honest and reasonable mistake may be open in relation to this.
We often defend matters where there has been some trivial or minor contact with the police officer in circumstances that the officer could not genuinely claim that they feared immediate violence.
Alternatively, the defence of self defence may be available in circumstances in which a person is being handcuffed and their arm, wrist or thumb is being forced behind their back causing pain and they react accordingly, or where they are being unnecessarily manhandled or assaulted, or tackled to the ground with knees placed on your back or head – self defence is found at Section 418 Crimes Act 1900.
If you have been charged there are a number of ways we can assist you in the court process. We may be able to have your charge withdrawn or downgraded by the Police. You may have an available defence or you may wish to plead guilty, in which case one of our criminal defence lawyers or accredited criminal law specialists will make submissions on your behalf on sentence.
Nyman Gibson Miralis specialise in a wide range of general and serious criminal law matters. If you require assistance, contact one of our expert criminal defence lawyers