This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Resisting Police and Resisting Arrest
Resisting or obstructing police is dealt with seriously by the ACT’s courts, with one in seven offenders sentenced by the ACT Magistrates Court receiving a prison sentence, according to recent statistics.
The Offence of Resisting Police
The Criminal Code 2002, at Section 361, provides that a person who “obstructs, hinders, intimidates or resists” a public official exercise of his or her functions is liable to a maximum penalty of 200 penalty units and/or two years’ imprisonment. The Code provides for a “minor offence” where the person resisting was reckless about whether the person was a police officer. In this case, the maximum penalty is 50 penalty units and/or six months’ imprisonment.
Will I Get A Criminal Record from A Resist Police Charge?
A criminal conviction will result from a finding of guilt for this charge unless the court is convinced that it should exercise its discretion not to convict you of the offence. The factors that are relevant to sentencing for this offence are many and varied, relating not only to the circumstances of the incident but also to the criminal histories of accused people.
What Actions Might Constitute Resisting Police?
The courts have said that anything that makes it more difficult for the police to carry out their duties is “obstructing” them: Hinchcliffe v Sheldon [1955] 1 WLR 1207 per Goddard, LCJ.
Examples of behaviour that amount to resisting police are:
- Placing yourself between police and someone they intend to speak to;
- Not submitting to police when clearly directed to;
- Twisting, or trying to free yourself from a police officer’s grasp;
- Continuing to defy an officer’s direction to “stop resisting”.
What the Police Must Prove
To find a person guilty of this offence beyond a reasonable doubt, a court must be satisfied that:
- they obstructed, hindered, intimidated, or resisted a public official;
- this was done while the public official was exercising his or her functions as a public official;
- the accused knew that the public official was a public official;
- that the public official was a Territory public official;
- that the functions being performed were the functions of a Territory public official.
Possible Defences for Resisting Police
A person charged with this offence may argue in their defence that:
- that the person was not a Territory public official;
- that they were not exercising their lawful functions.
Which Court Will Hear Your Matter?
As the charge of resisting police carries a maximum penalty of no more than two years’ imprisonment it is a summary-only offence. This means that it is heard only in the ACT Magistrates Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.