The Offence of Assaulting a Police Officer in New South Wales

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The New South Wales Deputy Police Commissioner has defended the actions of police officers who manhandled a 62-year old female store manager while arresting her for not wearing a face mask at an organic food store in Bowral in the Southern Highlands of the state, and shoved a man in the face before arresting and charging him with assaulting police when he tried to intervene.

Police were tipped-off that staff at the store were opposed to wearing face masks, having posted on Instagram that “Masks are unhygienic and in an open food store, (organic store) it isn’t safe.”

The store manager was approached for failing to wear a mask in the store, and arrested after she allegedly refused to provide police with her details.

A 61-year-old customer who was not wearing a mask in the store was also arrested.

In video footage taken by the arrested customer, the store manager can be heard telling police they were bending her arm backwards as they maneuvered her inside the police wagon.

An officer is then seen to push a middle-aged man after he repeatedly asks “what has she done?”, before shoving him in the face.

Two police officers are then seen wrestling the man to the ground.

As police force the store manager into the van, another woman is heard repeatedly asking “what is she guilty of ?”.

Charges of assaulting police and resisting arrest

The man was charged with assaulting an officer in execution of duty, resisting an officer in execution of duty and incitement to resist/hindering a police officer in execution duty.

The offence of assaulting a police officer

Assaulting a police officer in the execution of duty is an offence under section 60 of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You assaulted, threw a missile at, stalked, harassed or intimidated a police officer, and
  2. The officer was in the execution of his or her duties.

An ‘assault’ is where:

  1. You caused the officer to fear immediate and unlawful violence, or you made unauthorised physical contact with the officer,
  2. The officer did not consent, and
  3. Your actions were intentional or reckless.

An act is considered to be against a police officer even though he or she is not on duty, if it is carried out due to:

  1. Actions by the officer while executing his or her duty, or
  2. The fact he or she is a police officer.

The maximum penalty increases to 7 years in prison where you inflicted ‘actual bodily harm’ on the officer which is harm that is more than ‘transient or trifling’ and includes lasting cuts or bruises.

The maximum increases to 12 years in prison where you inflicted ‘grievous bodily harm’ on the officer which is ‘very serious harm’ that includes, but is not limited to:

  1. Any permanent or serious disfigurement,
  2. The destruction of a foetus, other than by a medical procedure, and
  3. Any grievous bodily disease.

Defences to the charge include:

  1. Self-defence
  2. Duress, and
  3. Necessity

Face masks – the current rules

The current public health order in New South Wales directs that face masks must be worn in all indoor public spaces that are not residential homes. They are also required:

  • At organised outdoor gatherings,
  • On public transport and associated areas such as train platforms and bus stops,
  • In major recreation facilities such as a stadium, and
  • All hospitality venues.

The fine for not wearing a mask is currently $200.

Police have issued around 100 infringement notices across the state in the past week or so.

Public sentiment

While it appears there was a strong case those in the Bowral store were in breach of current public health orders, there has been criticism of the way they were treated by officers.

New South Wales is starting to feel a sense of what Victoria went through last year – restrictions to movement, uncertainty around travel, mandatory mask-wearing and lockdowns, and many are at breaking point.

As Covid-19 stretches well into its second year, the restrictions are taking a heavy toll on both individuals and businesses, and there are calls for police to exercise a level of understanding when dealing with members of the public.

Many people are reaching breaking point

Psychologists have been saying for months that the impact of Covid on every aspect of our lives has the potential for detrimental effects. This time last year as Australia seemed to be combating the pandemic far better than many other countries,  there was hope that life would return to normal.

But, as it stands, ‘normal’ continues to mean a lingering uncertainty that has people frustrated, angry, depressed and fearful.

However, when the most recent Covid restrictions were introduced recently, NSW Police made it clear that they were going to make their presence known, and that they were moving to an ‘enforcement’ regime – essentially meaning that there would be no warnings given to anyone found to be contravening a public health order.

Last week, police fined Deputy Prime Minister Barnaby Joyce for not wearing a face mask as he purchased petrol, and also fined one of their own, a police superintendent who was not wearing a face mask at a fast food outlet.

Since the virus first hit Australian shores last year health, experts have touted the benefits of masks in stopping transmission. T

The current public health orders, which include lockdowns and the wearing of masks, will be in place until at least 9 July 2021.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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