In NSW, assaults against the Police are taken very seriously. It is important that when charged with an offence of assaulting the police, you have an experienced criminal lawyer by your side. As former prosecutors, our criminal lawyers Josh McKenzie and James McLoughlin know the law and how police conduct their investigations. This is a considerable advantage in the context of choosing your legal representation. For non-judgemental legal representation that is client focused and results driven, contact McKenzie McLoughlin Law.
The offence of assaulting an officer in the execution of their duty
Subsection (1) of the section states that, “A person who assaults, throws a missile at, stalks, harrasses or intimidates a police officer while in the execution of the officer’s body, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.”
Subsection (1A) states that, “a person who, during a public disorder, assaults, throws a missile at, stalks, harrasses or intimidates a police officer while in the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years.”
Subsection (2) contains an aggravated sentence which states that, “A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.”
Subsection (2A) contains an aggravated offence relating to public disorder, where the officer sustained actual bodily harm, which states, “A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years.”
Subsection (3) contains an aggravated offence, if the officer sustained a wound or an injury amounting to grievous bodily harm, which states that, “A person who by any means during a public disorder:
- wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and
- is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years.”
(4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out:
- as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or
- because the officer is a police officer
What are some examples of assaulting Police?
Conduct which is aggressive towards the police an causes an immediate apprehension of fear, or, conduct which involves force being applied to an officer or officers will likely result in a person being charged for assaulting police. Such conduct would include:
- Punching
- Kicking
- Headbutting
- Spitting, or
- Pushing
Of importance, there are circumstances in which an offence under this section can be made out even if the officer was not on duty at the time. These are:
- If the assault occurred as a consequence of or in retaliation for actions taken whilst the officer was in the execution of their duty.
- If the assault occurred because that person is a police officer.
An example would be to seek out, and then threaten or assault a police officer when they are off duty and not at work.
What do the police have to prove?
Pursuant to section 60(1) of the Crimes Act 1900, the Police must prove each of the following elements beyond a reasonable doubt:
- A person
- Assaulted; threw a missile at; stalked; harassed or intimidated a person,
- That person was a police officer, and
- That officer was in the execution of their duty at the time of the assault
In respect of the other offences pursuant to section 60, that will vary depending on whether the offence occasioned injury, or was in a public disorder.
Are there any defences to assaulting an officer in the execution of their duty?
Defences include not believing, and not reasonably be expected to believe that the person was a Police Officer. Another defence would be where the Police Officer was not acting in the execution of their duty.
In addition to the above, it may also be raise the defence of necessity, self defence, or duress as the reason for one’s conduct.
For matters relating to allegations of assaulting Police, it is imperative that you retain experienced criminal lawyers for representation. Josh and James are former Police Prosecutors and have a detailed knowledge of the law in respect of Police powers and whether they are acting outside the execution of their duty. Don’t underestimate the advantage of having driven defence lawyers who knows how both sides work, contact Josh and James today.
Which Court will hear the matter?
Offences under subsection (1) and (1A) are Table 2 offences and will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.
Offences under subsections (2) and (2A) are Table 1 offences. That means that the matte will be dealt with in the Local Court unless the Prosecution or Defence elects to have the matter dealt with in the District Court.
Offences under subsections (3) and (3A) are strictly indictable offences and must be finalised in the District or Supreme Court. For obvious reasons, if the matter is to be determined in the District or Supreme Court, the likely penalties will include imprisonment.