Assaulting A Police Officer & Resisting Arrest in NSW

Overview

Assaulting a police officer

Assaulting a police officer is a crime under sections 58 and 60(1) of the Crimes Act 1900 (NSW). This offence occurs when a person assaults a police officer in the execution of their duty.

This could include anything from pushing, spitting on, or punching a police officer, to struggling violently while the police arrest you.

Specific offences apply depending on the context of the assault or the harm caused, and include:

Assaulting a police officer during a public disorder.
Assaulting a police officer occasioning actual bodily harm.
Wounding or causing grievous bodily harm to a police officer.

The offence of assaulting a police offer is often laid in circumstances when a person is being unlawfully arrested, and they resist that arrest. In this case, sound legal defences may be available.

Penalties for assaulting a police officer

Assaulting police is a common charge and carries significant potential penalties.

The maximum penalty that can be imposed for assaulting police is five years imprisonment.

However, most charges remain in the Local Court where the jurisdictional limit is two years imprisonment.

Other penalties that can be imposed include a fine, Conditional Release Order or Community Correction Order. It is also possible for no conviction to be recorded under section 10 of the Crimes (Sentencing Procedure) Act.

The penalties are more severe for other forms of this offence, and often carry a term of imprisonment. For example, causing grievous bodily harm to a police officer during a public disorder carries a maximum penalty of 14 years imprisonment.

Overall, the offence of assaulting police covers many different types of actions and harm. In determining which penalty to impose, the courts will consider the nature of the assault and the seriousness of the harm caused.

Resisting arrest

Resisting police occurs when a person resists the actions of a police officer during the lawful execution of their duty. It is a crime under sections 58 and 546C of the Crimes Act.

Under section 58, the maximum penalty for resisting arrest is five years imprisonment.

Under section 546C, the maximum penalty is 12 months imprisonment or a fine of up to $1,100.

There are occasions when a person is charged under section 58 of the Crimes Act where it is appropriate to negotiate a plea of guilty to an offence under section 546C which carries a smaller maximum penalty. Expert legal representation is therefore recommended to ensure that you receive the best possible outcome.

What does ‘resisting’ mean?

The commonly understood legal definition of resisting is “opposing by force”.

Often a charge of resist arrest is laid by police is circumstances when the elements of the offence are not made out. For example, running away from a police officer before an arrest has been made does not constitute resisting arrest.

To prove the offence, the prosecution must prove beyond reasonable doubt that you intentionally resisted the course of action the police officer was pursuing, i.e. trying to arrest you.

This offence is sometimes charged inappropriately, such as when the arrest is unlawful, or a person is simply moving as a response to pain from the use of force, which at times is lawful but still painful, and at other times is excessive. The available defences require a sophisticated legal understanding of some of the more technical aspects of police powers, and it is advisable that you seek legal advice from a criminal defence lawyer.

Frequently Asked Questions

In which court will assault police charges be heard?

Assaulting a police officer under sections 58 or 60(1) of the Crimes Act will ordinarily be dealt with in the Local Court. In rare circumstances, it may be heard in the District Court, but this would usually only occur if a defendant is also charged with further more serious offences that must be dealt with by the District Court.

Some other types of assault police offences are strictly indictable and must be heard in the District Court.

What does ‘execution of duty’ mean?

A police officer is acting in execution of their duty from the moment they embark on a lawful task in connection with their functions as a police officer. Examples include performing an arrest, or carrying out a random breath test.

“Execution of duty” is an element of the offence and as such must be proven beyond reasonable doubt by the prosecution. For example, if a court finds that a police officer has arrested you unlawfully or that they have used excessive force, then from that point in time they are not considered to be in the execution of their duty as they are acting beyond the power that is legally permitted to them.

This would mean that the prosecution cannot prove this element of the offence and the consequence would be a finding of not guilty.

Can you resist an unlawful arrest?

You cannot be found guilty of resisting police if the police were not executing their duties as officers at the time, or if their actions were illegal or outside the scope of their powers. Accordingly, you cannot be found guilty of resisting an unlawful arrest, however this can involve a complicated defence requiring the assistance of an experienced defence lawyer.

Is there a right to self-defence against police?

The short answer to this question is “yes”, and it is a common defence to charges of resisting arrest and assaulting police. 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 excessive force such as 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 pepper spray, batons or drawing firearms when there is no threat of resistance or lethal force.

If you ever witness police arresting someone in a manner that you instinctively feel may be unreasonable, or police appear to be using an unreasonable or excessive amount of force, you are lawfully allowed to film them in public at a distance that is safe to both the people you are filming, and yourself. This can be powerful and compelling evidence at a subsequent defended criminal proceeding.

In some cases, the alleged assault may be a natural defensive response to actions by the police. Even where police were acting lawfully, a person has the right to defend themselves. In such circumstances, self-defence may be a possible defence if it can be established that:

The accused believed that their conduct was necessary in order to defend themselves, and
Their actions were a reasonable response in the circumstances as they perceived them.

The conduct cannot be unreasonable or excessive. For instance, if the police officer grabbed your shoulder, you cannot hit them over the head with a stick.

Can I be charged with verbally abusing a police officer?

It is common to find that a person who is charged with assaulting a police officer is also charged with resisting arrest and using offensive language. This occurrence is so common that it has a colloquial name among NSW practitioners of criminal law as “The Trifecta”. The Trifecta occurs when a person is charged with:

Assaulting police,
Resisting police, and
Using offensive language.

The reasons for these multiple charges are logical. 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 various legal cases which discuss the meaning of offensive Language in the context of the criminal charge. Whether the language would be considered offensive depends on the words used and the context in which they were said. Simply using a swear word does not by itself establish the offence at law. This offence if therefore often charged inappropriately and is defendable.