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...

Assault Police


In Victoria, the maximum penalty for assaulting a police officer is 5 years’ imprisonment. Unlike in other jurisdictions, the Victorian offence of assaulting a police officer is covered by a provision that also includes assaults on other emergency workers. The offence is contained in Section 31(1)(b) of the Crimes Act 1958. In order for a person to be found guilty of this offence it must be proven that they assaulted or threatened to assault, resisted or intentionally obstructed an emergency worker on duty, knowing or being reckless as to whether the person was an emergency worker.

Proving the offence of assaulting a police officer

To find a person guilty of assaulting a police officer or other emergency worker under this section, the police must prove each of the following elements beyond a reasonable doubt:

  • They assaulted, threatened to assault, resisted or intentionally obstructed a member of the police force, or a person aiding a member of the police force or another emergency worker;
  • At the time of the offence, they knew or were reckless as to whether the person was a member of the police or another emergency worker;
  • At the time of the offence, that police officer or emergency worker was acting in the ‘due execution of their duty’;
  • Their actions were without lawful excuse

Assault

For the purposes of this offence, assault is considered to be the direct or indirect application of force to the body of, or to the clothing or equipment worn by, a person where the application of force is:

  • Without lawful excuse; and
  • With intent to inflict, or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty

Execution of Duty

It must be proved that the complainant was in fact a member of the police force (or a person assisting that officer) and that the police officer was acting in the due execution of their duty. Generally, a police officer acts in the due execution of duty when he or she embarks on a lawful task connected with their functions as a police officer.

What Actions Might Constitute Assaulting a Police Officer?

Hitting, punching or kicking a police officer when they are lawfully arresting you might constitute this offence. Resisting arrest may also amount to an offence under this provision.

Possible Defences for Assaulting A Police Officer

A person charged with this offence may defend the charge by arguing:

  • The person was not a police officer or emergency worker acting in the execution of their duties;
  • That the accused did not and could not reasonably have known that the victim was a police officer or emergency worker;
  • That the accused acted in self-defence. 
  • That the accused’s actions were accidental.

Jurisdiction

So long as the defence consents, the charge will generally be heard in the Magistrates’ Court of Victoria. If there are other more serious charges or if the accused does not consent to the Magistrates’ Court hearing the matter, the matter can be committed to the County Court of Victoria.

Diversion for Assaulting a Police Office – A Case Study

Our client was charged with seven offences, including charges of assaulting police and resisting arrest.

It was alleged that our client was intoxicated and behaving inappropriately in public. Victoria Police were called to the scene by people not known to our client. When Police arrived, it was alleged our client physically and verbally attacked the officers who were attempting to calm her down.

Some of the officers were injured during the incident, including one officer who was scratched and bruised by our client. Eventually, our client was taken to the local hospital where she spent a number of weeks receiving treatment for serious mental health issues and alcohol addiction.

Once we were retained, it became clear to us that our client’s behaviour on that evening was not an indication of her usual character or personality. Our client explained a number of tragic circumstances in her life directly leading up to the offending. It was also obvious in our client’s Record of Interview with Victoria Police that she was sincerely horrified by what had happened.

Our client’s primary concern was that a criminal record, particularly one so serious, would result in her losing her licence to practice as a registered nurse. Without her career, our client could not imagine recovering fully and ever again contributing properly to the community.

We organised a conference with the police officers involved in our client’s arrest to discuss the possibility of a Diversion Notice being offered to our client. The police officers were understandably hesitant to offer a Diversion Notice, given the violence and aggression exhibited by our client. However, we explained our client’s circumstances and implored the officers to give our client an opportunity to recover and continue to work as a nurse.

Finally, Victoria Police agreed to offer our client a Diversion Notice on the condition she continue her mental health care plan for a period of 12 months. Our client gladly agreed.

We attended at the Sunshine Magistrates’ Court a few weeks later. We handed documents to the Magistrate we had prepared in support of our client and made submissions. The Magistrate supported our client’s Diversion Notice and placed our client on a Diversion Plan.

Twelve months have passed and our client continues to practice as a registered nurse. The charges against her are no longer on her record.

DISCLAIMER: This is a case study of an actual matter where the client was represented by Armstrong Legal. Details relating to the client have been changed to protect their confidentiality. The outcome, charges and facts have not been altered.

Our case studies are published to show real outcomes and give an indication of possible results. We cannot, and do not, guarantee a matter involving similar charges will get an identical outcome.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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