It’s a common scenario, known in the legal profession as ‘the trifecta of charges’:
An individual is using offensive language in a public place.
They are confronted by police who act in an overbearing and aggressive manner. The situation escalates and the individual is arrested in a heavy-handed manner, experiencing significant discomfort or even unnecessary pain or injury.
The arrestee is highly agitated. He or she may be finding it difficult to breathe, or may be in pain or may otherwise feel highly distressed, claustrophobic and panic.
He or she tries to get the officers off them, or to get out of a lock, or otherwise ‘resist’ the arrest.
There is a further escalation, whereby officers apply more force or even strikes. The individual reacts by lashing out, thereby striking out which may be seen as an assault on police.
They are charged with the trifecta: offensive language, resisting arrest and assaulting police.
The most serious offence is the last one, but what constitutes ‘assaulting police’ in NSW? What are the possible defences? And what are the maximum and likely penalties?
The most frequently prosecuted offences are contained in section 60, which criminalises six discrete forms of conduct towards police officers who are acting ‘in the execution of their duty’.
Section 60(1) makes it an offence punishable by up to 5 years’ imprisonment to assault, throw a missile at, stalk, harass or intimidate such an officer.
In order to prove the offence, the prosecution must establish beyond a reasonable doubt that:
- The victim was a police officer,
- The victim was acting in the execution of his or her duty, and
- The accused assaulted, threw a missile at, stalked, harassed or intimidated the victim.
These are called the ‘essential elements’ (or ingredients) of the offence.
Section 60(1A) prescribes a maximum penalty of 7 years’ imprisonment for assaulting a police officer during a ‘public disorder’.
To be found guilty, the prosecution must prove the conduct occurred during a ‘public disorder’, in addition to the 3 elements listed above. A public disorder is defined as “a riot or other civil disturbance that gives rise to a serious risk to public safety”.
Section 60(2) sets a maximum penalty of 7 years’ imprisonment for assaulting a police officer and thereby occasioning ‘actual bodily harm’.
The offence also carries what is known as a ‘standard non parole period’ (or SNPP). A SNPP is a reference point or guidepost for a sentencing judge when determining the minimum time a person should spend behind bars before being eligible for release on parole. The SNPP for offences under section 60(2) is 3 years imprisonment.
To be found guilty of the offence, the prosecution must prove the occasioning of actual bodily harm in addition to the 3 elements listed above.
‘Actual bodily harm’ is that which is “more than merely transient or trifling”; R v Donovan  2 KB 498. It does not need to be a permanent injury, and may include bruising, and scratches or marks which do not subside within a short space of time.
Psychiatric injury beyond transient emotions such as fear and panic may amount to actual bodily harm; R v Chan-Fook  1 WLR 91.
Section 60(2A) prescribes a maximum penalty of 9 years’ imprisonment for assaulting a police officers and causing actual bodily harm during a ‘public disorder’.
Section 60(3) sets a maximum penalty of 12 years’ imprisonment for recklessly wounding or causing grievous bodily harm to a police officer. The offence also carries an SNPP of 5 years’ imprisonment.
To establish the offence, the prosecution must prove that:
- The victim was a police officer,
- The victim was acting in the execution of his or her duty,
- The accused wounded or inflicted grievous bodily harm on the victim, and
- The accused did this recklessly.
A “wound’ is an injury which involves breaking or cutting the interior layer of the skin (the dermis); R v Smith (1837) 8 C & P 173. Breaking the outer layer of skin (eg through a scratch) or internal bleeding will not by itself amount to a wound for the purposes of the law; R v Shepherd  NSWCCA 351. However, a ‘split lip’ will suffice; R v Hooper  NSWCCA 10.
“Grievous bodily harm” is defined by the common law as ‘really serious harm’; DPP v Smith  AC 290.
Section 4 of the Crimes Act makes it clear that such harm includes:
(a) the destruction of the foetus (other than in the course of a medical procedure),
(b) any permanent or serious disfiguring, and
(c) any grievous bodily disease.
However, this is by no means an exhaustive list. The Public Defenders Sentencing Tables provide a helpful list of injuries found by the courts to be grievous; including broken bones, damage to internal organs, and skull and brain damage.
An act is done “recklessly” where the person foresees the possibility of the infliction of the resulting harm yet proceeds to commit the act regardless; Blackwell v R  NSWCCA 93.
And finally, section 60(3A) prescribes a maximum penalty of 14 years’ imprisonment for recklessly wounding or causing grievous bodily harm to a police officer during a public disorder (previously defined).
Section 58 of the Crimes Act sets out the offence of ‘Assault with intent to commit a serious indictable offence on certain officers’.
The offence is broad in both application and scope. It applies to a range of people, including “a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or person acting in aid of such officer”.
It makes it an offence punishable by up to 5 years’ imprisonment to assaulting, resist, or wilfully obstruct such a person.
It is important to note that the maximum penalty for all of the above offences when they are finalised in the Local Court is 2 years’ imprisonment.
Meaning of ‘in the execution of duty’
An essential ingredient of each of the above offences is that the officer is acting in execution of his or her duty.
In that regard, it has been found that a police officer is so acting from the moment he or she embarks upon a lawful task connected with his or her functions as a police officer, provided he or she is not doing something outside the ambit of his or her duty; R v K (1993) 118 ALR 596.
It is not necessary for the prosecution to prove the defendant knew the alleged victim was an officer on duty; R v Reynhoudt (1962) 107 CLR 381.
In addition to this, section 60(4) stipulates that an action is taken to be undertaken in the course of the police officer’s duty even though the officer is not on duty at the time, if it is carried out:
- As a consequence of, or in retaliation for, actions carried out by that officer in the execution of his or duty, or
- By virtue of the fact the alleged victim is a police officer.
Naturally, the prosecution will fail to prove the offence if it is unable to establish any of the essential elements beyond reasonable doubt.
In addition to this, there a number of legal defences which may be raised against allegations of assaulting police.
Where there is evidence of a defence, the prosecution will be required to negative that defence beyond a reasonable doubt– in other words, prove to the required standard that the evidence does not support such a defence.
Section 418 of the Crimes Act provides that a person is not guilty of a criminal offence (except where death is inflicted to protect property) if he or she “believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.”
So, for example, a person is not guilty of assaulting police if the officers were applying excessive physical force during an arrest and the arrestee believed lashing out was the only way to stop the assault or protect themselves from injury, provided the conduct was a reasonable response to the situation as the arrestee perceived the situation.
A far less common defence is ‘necessity’, which is where a situation of “immediate peril” causes a person to act in such a way as to avoid serious consequences. Like self-defence, the act must be “reasonable and proportionate to the situation”.
Another available defence is ‘duress’, which relates to certain situations where a person is threatened or intimidated into committing an offence against their will.
What should I do if charged?
If you have been charged with an offence involving an alleged assault on a police officer, it is a good idea to seek advice and legal representation from experienced criminal defence lawyers – who can advise you about the strengths and weaknesses in the allegations, your options and the best way forward.
A number of criminal law firms in Sydney provide a free first appointment for those who are going to court, allowing you to receive free legal advice without obligation.