Resist Arrest or Hinder Police - next step legal guide

If you have been charged with the offence of resist arrest or hinder police (s.546C Crimes Act 1900), then the prosecution must establish certain elements of the offence beyond reasonable doubt, including:

1. Any person who:

  • Resists or hinders police –
    • 'Resist' means to oppose by force a course of action which the person resisted is undertaking. For example, pulling your body in a direction other than the direction you are being moved by the police, or running away from police;
    • 'Hinder' involves any active interference with or obstruction, which makes it substantially more difficult for a police officer to fulfil their duties. For example, blocking the police accessing a house through a doorway or interfering with the police arresting somebody else by pulling them away; OR
  • Encouraging another person to resist, hinder or assault a police officer; AND

2. The person was a police officer in the NSW Police Force - it does NOT matter if you didn't know that that person was in fact a police officer; AND

3. The police officer was carrying out their duties as a police officer at that time - the most comprehensive judicial pronouncement on this is, 'that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, as long as he is engaged in that task until it is completed, provided he does nothing outside the ambit of his duty so as to cease to be so acting' (Director of Public Prosecutions Reference No 1 of 1993; R v K (1993) 118 ALR 596; 46 FCR 336)

 

Penalty

The maximum penalty for this offence is 12 months’ imprisonment and/or a fine of $1,100 (10 penalty units).

Traditionally the courts take a dim view of persons who resist or hinder police. It is very difficult to avoid a conviction for this type of conduct and depending on a defendant's criminal record and the circumstances of what happened, sometimes a jail term is given. Magistrates often say in delivering penalties for conduct against the police, that "police are only doing their job" and "police have an important job to do in the community and you interfered with this".  

 

Defences

There are legal defences available to persons who have been charged with a resist arrest or hinder police offence. Does your scenario fit into a legal defence? The following are possible defences:

  • You could argue that the police officer was acting outside of their duties - in some cases excessive authority may be resisted. If an officer uses excessive force to effect an arrest, then this goes outside the lawful scope of their authority, and it is lawful to resist the excessive force. Alternatively, if it can be shown that a police officer effects an arrest contrary to their legislative powers to do so, then they exceed their authority and act outside of their duties. 
  • Necessity – you had to act in that way so as to prevent serious injury or danger.
  • Duress – you were threatened or coerced into acting the way that you did.

 

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

 

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A RESIST ARREST OR HINDER TYPE OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Photographing your own injuries. Having a doctor catalogue your injuries. Obtaining advice in relation to making a statement to police or not. You need early advice.  

2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place and get their details.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.