What is the Offence of Resisting Police?

By Sahar Adatia and Jimmy Singh.

Like it or not, if you are engaging in an act of misdemeanour, police officers have the right to arrest you and fighting them mostly proves futile. Full stop.

Indeed, there are many individuals who fail to understand that you must submit to an arrest and that you cannot resist it.

Equally, even though it is what one should do in such a situation, submitting quietly to an arrest is a lot easier said than done.

Such is the case of a drunken man from Orange who, in March this year, was arrested by police after allegedly biting a Bathurst officer on the bicep in the middle of an arrest.

The alleged incident took place in the early hours of 11 March 2019 when a police officer attempted to arrest the 20-year-old outside a pub in Bathurst.

However, the young man allegedly resisted the police officer outside the William Street hotel and bit his arm instead.

How the Incident Unfolded

According to Inspector Gerard Powell, police were called to the licensed premises in William Street just after 1:45am after the man was asked to leave the building.

At this point, the man became “argumentative and aggressive”, and refused to move on.

Inspector Powell said police would allege the man was arrested after walking back towards the hotel.

He allegedly began to fight with police and tried to kick them.

After the man from Orange was taken to the ground, it is alleged he bit one officer on the arm, leaving a “significant” bite mark on his bicep.

The officer was then taken to Bathurst hospital to be treated.

Inspector Powell said the alleged assault was one of two separate incidents on the same premises, with the other happening approximately 30 minutes earlier.

“Police were conducting patrols of licensed premises and were out the front of the hotel talking with security when it is alleged the accused ran out of the hotel towards a group of people and started throwing punches at them,” he said.

“Police and security intervened at which point police will allege the accused man then turned on police, trying to punch an officer in the head.

“The police officer managed to dodge the punch and the man was arrested, taken back to Bathurst police station and charged with assaulting police in the execution of duty.”

He said the incident was far from acceptable.

“Expect to be Charged”: The Ramifications of Turning on Police

The 20-year-old man was charged with a string of offences including resisting an officer in the execution of duty, assaulting an officer in the execution of duty, and remaining on licensed premises.

Speaking of the arrest, Inspector Powell issued a warning for drunken idiots that police are not “to be punching bags”.

“People who drink too much and turn on police can expect to be charged, put before the courts and made accountable,” he said.

What is Resisting Police?

Interfering with or preventing police from doing their job is an offence that is dealt with seriously by the law.

The offence covers a broad range of behaviour and includes any kind of conduct that disrupts a police officer from carrying out their designated and lawful duties.

You can be charged with the offence if you resist or hinder police while they are working, or if you encourage somebody else to do so.

Common examples of resisting police include:

• Struggling with police who are trying to handcuff you
• Running away from police trying to arrest you
• Encouraging someone else to run away from police who is getting arrested
• Lying to police

What are the Penalties for Resisting Police in NSW?

In NSW, any person who resists a police officer while in the execution of his/her duty will face a maximum penalty of up to 5-years imprisonment under section 58 Crimes Act 1900 (NSW).

Where this charge is dealt with ‘summarily’ in the Local Court for sentence, the Local Court Magistrate will be limited to impose a maximum penalty of up to 2-years imprisonment and/or up to a fine of $5,500.

The maximum penalty of up to 5-years jail can only be imposed if the charge is dealt with on sentence in the District Court. It will only be dealt with in the District Court is an election is made for this to happen during the Local Court proceedings.

Section 60 Crimes Act 1900 (NSW) outlines the maximum penalties for related offences of assaulting a police officer while in the execution of his/her duty. Assaulting police carries a standard non-parole period which was outlined in our previous article on this topic.

Further, there is also the charge of resisting police under section 546C Crimes Act 1900 (NSW) that carries a maximum penalty of up to 12-months imprisonment and/or up to a fine of $1,100.

If you use a weapon with the intention to resist arrest, this attracts a more serious charge with a maximum penalty of up to 12 years in jail under section 33B Crimes Act 1900 (NSW).

If this is carried out in the company of another person, the maximum jail time increases to 15 years.

What the Police Must Prove for a Charge of Resisting Police

To be found guilty of a resist police officer charge under section 58, the prosecution is required to prove each of the following essential elements of this crime beyond reasonable doubt in court:

1. The accused person interfered or resisted the officer’s duties. This can include conduct that prevented or threatened the officer; and
2. The officer who was subject to the resist was either a police officer, prison officer, sheriff’s officer or any person who was acting for the aid of the officer; and
3. At the time, the officer was acting within his/her lawful power of duty.

If any one of the above elements are not proven in court with sufficient evidence, the prosecution will have failed to prove the charge against the accused person. This will result in the dismissal of the charge where the accused will be acquitted.

In NSW, resisting police under section 546C occurs if a person:

1. Resists or hinders a police officer; or
2. Incites another person to assault, resist or hinder a police officer; and
3. In circumstances the police officer was executing his/her lawful duty as a police officer

The resist police charge will end up being dismissed in court if the prosecution fail to prove any one of the above essential elements beyond reasonable doubt in court.

What are the Defences to a Charge of Resisting Police?

Other than the failure of police to prove any of the essential elements of this charge in court (outlined above), other defences to a charge of resisting a police officer, which if successful will result in a finding of not guilty, include:

1. Self-Defence: This is where the person accused of resisting police acted in a way to protect him/herself in a situation where his/her actions were considered to be a reasonable response in the circumstances he/she perceived to be at the time (not what was perceived by the hypothetical reasonable person in the accused person’s position); or
2. Failure of the officer to be acting under his/her lawful power: This is where the police officer was facing resistance in a situation where he/she was acting outside the ambit of his/her power as a police officer. This can include a situation where the officer was conducting an illegal arrest, illegal search or illegally imprisoned the accused person.
3. Necessity or Duress: This is where the accused person was acting under a necessity or duress.

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