Criminal law
Assault police and resisting arrest
These charges almost always come out of an arrest, and they usually arrive as a set: resist, hinder, assault police, sometimes offensive language as well. The question that decides most of them is not what you did. It is whether the officer was lawfully acting in the execution of their duty at the time.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Alicia prosecuted for over eight years before moving to defence. Available to attend police stations and to advise by phone.
Ask for the body-worn video straight away. Almost every one of these incidents is recorded, from more than one camera, and the footage routinely shows something different from the fact sheet. It is the single most important piece of evidence in these matters and it needs to be requested early and properly.
Do not take part in an interview without advice. These arrests usually happen when people are upset, intoxicated or frightened, and an interview conducted hours later rarely helps. Declining is not evidence of guilt.
If you were injured, have it documented. See a doctor and photograph any injuries, including bruising, which develops over the following days. Where force was used on you, that evidence matters.
The charges, and why the difference matters
One incident can be charged several ways. The maximums are very different, and moving a charge down this table is often the most valuable thing achievable in the matter.
| Charge | What it covers | Maximum penalty |
|---|---|---|
| Resist or hinder police | Opposing an officer by force, or obstructing them so as to make their duty more difficult. Includes inciting someone else to do so | 12 months, or a fine of 10 penalty units, or both |
| Hinder or resist, charged under the police-specific provision | The same conduct, charged under a different section | 12 months, or a fine of 20 penalty units, or both |
| Assault police, no injury | Assaulting, throwing a missile at, stalking, harassing or intimidating an officer in the execution of their duty | 5 years |
| Assault police during a public disorder | The same, during a large-scale disturbance | 7 years |
| Assault police occasioning actual bodily harm | Where the assault causes an injury more than transient or trifling | 7 years, or 9 years during a public disorder |
| Wounding or grievous bodily harm to police | Reckless wounding or really serious injury | 12 years, or 14 years during a public disorder |
Resist and assault are not the same thing, and the gap between them is four years. Pulling your arm away, going limp, or struggling while being handcuffed is resisting. Police frequently charge assault police for conduct that is really resistance, particularly where an officer was jostled during a struggle. Getting the charge back to resist or hinder changes the maximum from five years to twelve months, and it changes how the matter is viewed entirely.
Equivalent offences apply to other law enforcement officers, including corrective services and youth justice officers, on the same structure. Using or possessing a weapon to resist arrest is a separate and far more serious charge.
The central issue
Was the officer acting in the execution of their duty?
Every one of these offences requires the officer to have been lawfully executing their duty at the time. If they were not, the element is not made out and the charge fails. This is where these matters are won, and it is why they should not be pleaded to without someone looking at the brief.
An officer steps outside the execution of duty where the arrest or the exercise of power was itself unlawful. Common issues:
- No reasonable suspicion. An arrest requires a suspicion on reasonable grounds that an offence has been or is being committed. A hunch, or an arrest for being difficult, is not enough.
- Arrest was not reasonably necessary. Even with a reasonable suspicion, an arrest must be reasonably necessary for a specified purpose, such as preventing the continuation of an offence, ensuring attendance at court or preserving evidence. Arresting where a summons would have done is unlawful.
- The officer did not comply with the requirements for exercising a power. They must provide their name and place of duty, and the reason for the exercise of the power, and where not in uniform must provide evidence they are a police officer.
- An unlawful search. Where the search that led to everything else was not lawfully conducted, what followed is affected.
- Remaining on private property after being asked to leave, absent a warrant or a power to be there.
- Excessive force. An officer using more force than is reasonably necessary is not acting in the execution of duty at that point, and self-defence may be available in response.
None of this is a reason to resist at the time. Resisting an unlawful arrest is a very poor practical decision even where it is legally arguable, and it tends to produce more charges and more injuries. The place to run it is in court, afterwards, with the footage.
Defences
Not in the execution of duty
As above, and the most commonly successful argument. It requires the brief, the body-worn video and the custody records to be examined properly, not just the fact sheet.
Self-defence
Available against excessive force, and against force used in an unlawful arrest. Once properly raised, the prosecution must disprove it beyond reasonable doubt.
You did not know they were police
Relevant where officers were in plain clothes and did not identify themselves, which happens more often than people expect.
It was not resistance
Being slow, being upset, arguing, swearing, or failing to answer questions is not resisting or hindering. Resistance means opposing by force. Hindering means obstructing so as to make the duty materially more difficult.
No assault
Involuntary movement while being restrained, or contact incidental to a struggle, is not necessarily an assault. Intention or recklessness still has to be proved.
Duress and necessity
Less common, but available in the right circumstances.
How the courts approach these matters
Be aware of the reality: courts treat offences against police seriously, and general deterrence carries real weight in sentencing them. Magistrates hear them constantly and are not easily impressed by an explanation that amounts to having had a bad night.
That said, a great many of these matters end without a conviction, particularly where the person has no record, the conduct was at the lower end, and the material put before the court is properly prepared. What makes the difference is:
- Whether the charge is the right one, or has been negotiated down
- Whether the facts in the fact sheet are agreed, because the court sentences on that document
- Genuine remorse, and an apology where one is appropriate
- Evidence addressing the cause, whether that is alcohol, mental health or something else
- Character references from people who know about the charge
- What is at stake for you: employment, a security or firearms licence, travel, or a visa
Where mental health or cognitive impairment played a part, the Local Court can deal with the matter by way of a treatment plan instead of convicting and sentencing. That requires properly prepared evidence and is not available for the asking, but in the right case it is a materially better outcome than any sentence. More on assault charges and sentencing options.
Common questions
I was arrested for something minor and now I have three charges. Is that normal?
Unfortunately yes. Resist, hinder, assault police and offensive language commonly arrive together out of a single incident, and sometimes the original matter is dropped while these remain. They should be looked at as a set, because the same footage answers all of them.
The arrest was unlawful. Does that mean the charge fails?
It may. Each of these offences requires the officer to have been acting in the execution of their duty, and an unlawful arrest can mean they were not. It is fact-specific and it requires the brief and the footage. Do not assume it, and equally do not assume the charge is unanswerable.
I only pulled my arm away. Is that assault?
Usually that is resistance rather than assault, and the distinction matters a great deal: twelve months against five years. Police do charge assault police in these circumstances, and negotiating it back to resist is often achievable.
Does swearing at police make it worse?
It may attract a separate charge of offensive language, which is a fine-level matter, but swearing on its own is not resisting or hindering. It does affect how the incident reads in a fact sheet, which is a reason to have the facts negotiated.
How do I get the body-worn video?
It comes with the brief of evidence, but the brief takes time and there are things worth requesting sooner. Tell us at the first appointment if you believe there is footage from a particular camera, a particular vehicle or a nearby business, so it can be sought before it is lost.
Can I avoid a conviction?
It is achievable, particularly for lower-level resist and hinder matters with no record, though courts are more reluctant here than on many other charges because of the deterrence element. The preparation is what decides it.
What if the police hurt me?
Get medical attention and have the injuries recorded and photographed. It goes to whether the force used was reasonable, to whether the officer was acting in the execution of duty, and potentially to self-defence. There are also separate avenues for complaint, which we can talk you through.
What should I bring to the first appointment?
The court attendance notice, the police fact sheet, any bail conditions, photographs of injuries, medical records, and the names of any witnesses. If you have none of it, come anyway.
Do not plead to these before someone has seen the footage
These charges look unanswerable on the fact sheet and frequently are not once the body-worn video is viewed. Alicia prosecuted for over eight years before moving to defence, so we know how these briefs are put together and where they tend to be thin.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across Sydney. Courts we appear in.