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.
To be found guilty of this offence, the Prosecution must prove the following elements beyond a reasonable doubt:
1. That the accused person resisted or hindered, or incited any other person to assault, resist or hinder;
2. The victim or person concerned was a police officer; and
3. 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 best defence to this charge 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 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.
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.
Most of the standard criminal defences also apply to this charge, such as self-defence.
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