Case facts

The client was charged with assaulting police and resisting arrest in circumstances where the client was found highly intoxicated and had been assaulted herself by an unknown person. Police were called and approached our client who told the Police that she didn’t want their help.

The client walked away from the Police officers however they went after her and grabbed her by the arm on the basis that they believed she may need medical attention due to her injuries. The client told Police she wanted to go home and again commenced to walk away. She then returned towards the Police and angrily yelled at them. The Police believed there was going to be a physical altercation and the client was check drilled and pushed causing her to stumble backwards. The client grabbed hold of the one officer’s arms. The client was then forced to the ground. She was capsicum sprayed and then handcuffed.


Subjective circumstances

The client had been involved in a similar incident in 2005 and had been diagnosed with post-traumatic stress disorder due to that incident. The client was also a binge alcoholic and had arranged for in-house treatment. The client was also diagnosed with major depression for which she had previously received hospitalisation.

Potential Penalties: Maximum penalties for the two charges included 5 years imprisonment although as they were being dealt with in the Local Court they both carried maximum penalties of two years imprisonment and/or a maximum fine of $5,500.


Local Court proceedings

We appeared for the client and maintained pleas of not guilty to both charges. There were real issues about whether the actions of the accused amounted to self defence. A person can act in self defence even if the police are acting lawfully in the execution of their duties. The infamous police check drill is simply an assault by a police officer upon the person the subject of that procedure – which may or may not be justified as self defence by that officer. Given that police are armed with guns, were working in pairs, had access to a taser, capsicum spray, and are trained in dealing with people with mental health issues, it is sometimes surprising that they resort to the use of a check drill – particularly on a woman who they believe may need medical attention. However,  irrespective of the legality of the actions of the accused or the actions of the police, the opportunity existed for an application pursuant to section 32 Mental Health (Forensic Provisions) Act. We obtained a psychological report setting out the mental conditions the client was suffering from at the time of the offending behaviour. Before the Hearing, the application was made for the client to be dealt with in accordance with the mental health provisions and not in accordance with the law.

Essentially s.32 allows defendants who are or were at the time of the offence suffering from mental illness or condition for which treatment is available in a mental health facility to be diverted from being dealt with according to law and receive treatment. A Magistrate is required to make at least three decisions. Firstly, they are to determine whether the defendant is eligible to be dealt with under s.32. Secondly, the Magistrate then must determine whether it is more appropriate to deal with the defendant in accordance with the provisions of s.32 than otherwise in accordance with law. Finally, if it is more appropriate to deal with the defendant according to s.32, a decision must be made as to what action should be taken.


Case result

We were successful in our application to have the matter dealt with under s.32 despite pleas of not guilty being maintained. This is because under the legislation a Section 32 application can be made anytime during the proceedings. The two charges of assault officer in execution of duty and resist officer in execution of duty were dismissed upon the client entering into counselling and treatment for a period of 6 months.


Why you need an expert criminal defence lawyer

Offences of assault officer in execution of duty and resist officer in execution of duty are matters that are prevalent in our society. In order to obtain a great result you will require a solicitor that has excellent knowledge of the law relating to such matters including excellent preparation and advocacy skills.



Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.