This article was written by Lisa Riley - Solicitor - Perth

Lisa holds a Bachelor of Laws from Murdoch University and a Graduate Diploma in Legal Practice from the College of Law. She was admitted in the Supreme Court of Western Australia in 2018. She also holds a Graduate Diploma in Counselling with advanced majors in Addiction and Effective Parenting from the Australian Institute of Professional Counsellors. Lisa’s background and qualifications...

Assaulting a Public Officer (WA)


The offence of assaulting a public officer is classified as a serious assault in Western Australia. The penalties which can be imposed by the court will depend on whether the matter is heard in the District Court of Western Australia or the Magistrates Court of Western Australia. The penalties imposed will also vary depending on the injuries sustained by the public officer as a result of the assault.

Summary offence of assaulting a public officer

This matter can only be heard summarily (in the Magistrates Court) if the offender was not armed with any dangerous, offensive weapon or instrument and was not in the company of another person or persons immediately before, or immediately after, the commission of the alleged offence.

When an assault public officer matter is heard in the Magistrates Court of Western Australia, and the offender is found guilty, the court can impose a maximum fine of up to $36,000.00. The court may also impose a maximum term of imprisonment of up to three years.

If an offender causes a public officer, such as a police officer, to sustain any injuries which interfere with their health and comfort the court must impose a mandatory, and immediate, term of imprisonment for a period of at least six months. In the case of Scratchard v R (1987) 27 A Crim R 26, the court stated that the injuries caused to the officer must constitute more than merely pain or discomfort, experienced at the time of the assault.

Indictable offence of assaulting a public officer

Where parties do not agree for the matter to be heard summarily or where the offender is alleged to have been armed with an offensive weapon, or to have been in company with another person, the matter must be dealt with on indictment (in the District Court).

Section 318(1)(l)(i) &(ii) of the Criminal Code Act Compilation Act 1913 (the Criminal Code) sets out that where the offender immediately before, or immediately after, the commission of the offence is armed with any dangerous, offensive weapon or instrument or is in the company of another person or persons, and that offender is found guilty of the offence, the court can impose a maximum term of imprisonment for a period of up to ten years.

Section 318(1)(m) of the Criminal Code sets out that if the offender is not armed and not in the company of another person, or persons, the court can impose a maximum term of imprisonment for a period of up to seven years.

If an offender causes a public officer, such as a police officer, to sustain bodily injuries of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause permanent injury to their health (ie grievous bodily harm) the court must impose a mandatory, and immediate, term of imprisonment of a period of no less than twelve months.

What are the elements of assaulting a public officer?

Section 318(1)(d) of the Criminal Code states

“Any person who assaults a public officer who is performing a function of his office or employment or on account of his being such an officer or his performance is guilty of a crime”

The terms highlighted in bold constitute the elements of the offence. Where an offender pleads not guilty to the offence, the prosecution is required to establish all the elements of the offence beyond a reasonable doubt.

Assaults

Section 22 of the Criminal Code defines the term assault as follows:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, …, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person.

Therefore, an assault can take place where a public officer is pushed, or hit, or where any form of force is applied, or is threatened to be applied and where there is a real and likely possibility that the offender will be able to follow through with that threat of harm.

Public officer

Section 1 of the Criminal Code defines who is considered, by law to be, a public officer. This includes but is not limited to the following:

  1. A police officer;
  2. A Minister of the Crown;
  3. A Parliamentary Secretary;
  4. A member of either House of Parliament;
  5. A person authorised under a written law to execute or serve any process of a court or tribunal;
  6. A Public Service Officer, or employee, within the meaning of the Public Sector Management Act 1994 (WA); and
  7. A person who holds a permit to do high-level security work as defined in the Court Security and Custodial Services Act 1999 (WA);

Performing a function of their office or employment

This element will be satisfied by the prosecution if they can prove that the victim was working in one of the roles that are listed above at the time of the alleged commission of the offence.

Conclusion

Assaulting a public officer is a serious offence. The penalties imposed by the court will depend on the: classification of the offence (summary or indictable), nature and circumstances surrounding the offence and the injuries sustained by the public officer as a result of the offence.

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