Under section 546C of the Crimes Act 1900, it is an offence to resist or hinder a police officer in the execution of his or her duty. It is also an offence under this section to incite another person to assault, resist or hinder a police officer in the execution of his or her duty.
This offence is dealt with in the Local Court only and is punishable by a maximum penalty of 12 months’ imprisonment and/or a fine of $1100.
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What the prosecution must prove
To be found guilty of resist or hinder a police officer, the Prosecution must prove:
- That the accused person resisted or hindered, or incited any other person to assault, resist or hinder;
- The victim or person concerned was a police officer; and
- The police officer was acting in the execution of his or her duty at the time.
“Resisting” means to forcefully oppose police action.
“Hindering” means to cause an obstruction or interference that makes the officer’s duty substantially more difficult to perform. To be guilty of hindering, an accused person also must intend to substantially impede the officer or must be aware that his/her actions are likely to impede the officer.
An assault is very broadly defined and can include non-physical threats.
The Prosecution does not have to prove that the accused person knew that the person concerned was a police officer.
What constitutes “in the execution of duty”?
Like other offences involving police, it must be proved that the officer was acting in the execution of his or her duty when the allegation occurred. Normally this is not in question, however, there are times when a police officer’s actions cannot be said to occur within the execution of his or her duty.
A police officer’s actions are not within the execution of his or her duty if his or her actions are illegal or outside the scope of his or her duty. For example, if a police officer unlawfully arrests someone, resisting that arrest would not be an offence under this section.
The best defence to resist or hinder a police officer is often to argue that the police officer was not acting in the execution of their duty, or that the actions of the accused person did not constitute resisting or hindering. This is because the Prosecution has the burden of proving each element of the charge beyond a reasonable doubt.
A defence of “honest and reasonable mistake” is also available if the accused person can prove that he or she honestly believed, on reasonable grounds, that the person concerned was not a police officer acting in the execution of his or her duty and that his or her actions were innocent.
Can I avoid a conviction?
As with any offence, even after a finding of guilt, a court can still decide not to record a conviction.
However, this sentencing option is not always appropriate or attainable, even if an offender has no prior criminal history. This is because a magistrate is required to take into account the following factors:
- The person’s character, antecedents, age, health and mental condition;
- The triviality of the offence;
- Any extenuating circumstances in which the offence was committed; and
- Any other matter that the court thinks proper to consider.
However, it is important to note that this list is not exhaustive, and simply ticking each box does not guarantee that an offender will avoid a conviction.
Will I go to jail?
Upon conviction for this offence, an offender can be imprisoned for up to twelve months. However, the maximum penalty is reserved for the most serious offender. This is usually someone who has a history of criminal behaviour.
For the full range of penalties that can be imposed for this offence, see our Sentencing Options page.
Should I complete the Written Notice of Pleading and not attend court?
The police will sometimes give you a yellow “Written Notice of Pleading” form. In certain circumstances, you can indicate on this form that you wish to plead guilty and then send the form to the court.
We do not recommend this. It is always advisable to attend court in person, preferably represented by a lawyer, particularly if you are hoping to avoid a criminal conviction. Remember, this offence carries a maximum penalty of five years imprisonment. By attending court, you are showing the magistrate that you take the matter seriously and accept responsibility.