Have you been charged with resisting arrest?
If you have been charged with resisting arrest, see one of our experienced criminal defence lawyers today.
In Victoria, resisting arrest is a summary offence found in section 51(2) of the Summary Offences Act 1966. It is a criminal offence that is committed by a person who resists arrest by assaulting, resisting, obstructing, hindering, or delaying a police officer in the execution of their duty. The offence also applies to a person who incites another to assault, resist, obstruct, hinder or delay an officer.
While this article considers the offence of section 51(2) as it applies to resisting arrest by a police officer, the offence also protects on-duty emergency workers, custodial officers, and youth justice custodial workers. Furthermore, subsection (4) covers those who are lawfully assisting these workers, and subsection (5) protects members of a local authority.
Being found guilty of this offence can result in imprisonment with a maximum penalty of 5 years. Before advising the court whether you intend to plead guilty or not guilty to this charge, there are many factors to consider. Before proceeding further, speak to a specialist criminal lawyer.
Elements of resist arrest
To prove a charge under section 51(2) of the Summary Offences Act 1966, the prosecution must establish beyond reasonable doubt that the accused:
- Assaulted, resisted, obstructed, hindered or delayed a defined person; or
- encouraged another person to assault, resist, obstruct, hinder or delay a specified person; and
- the person obstructed was either:
- a member of the police force in the execution of their duty,
- a person lawfully assisting the police member in the execution of their duty under the Summary Offences Act 1966, or
- any member of staff of the local authority in the execution of their duty under the Summary Offences Act.
Knowledge of emergency worker status
For a person to be convicted or found guilty of this offence, it is also necessary for the prosecution to prove that the accused knew that the person hindered, obstructed or assaulted was an emergency worker (Leonard v Morris (1975) 10 SASR 528). However, similar but more serious indictable offences under section 31 of the Crimes Act 1958 do not require proof of this knowledge.
The meaning of ‘on duty’
The term on duty has the same meaning as in the Sentencing Act 1991 (s 10AA(9)). An emergency worker is not required to be rostered at the time of an offence to be considered on duty, although this is often the case. For emergency workers such as police officers or health workers, performing any duty associated with their role, such as treating a patient or exercising lawful authority, is generally regarded as ‘on duty’.
A police officer is considered to be acting within their duty from the moment they begin a lawful task connected to their official responsibilities and until the task is completed, as long as they remain within the bounds of that duty (Re K (1993) 46 FCR 336 at 340–341). However, an officer is not deemed to be executing their duty if they attempt to compel questioning from someone who is not under arrest or legally obligated to remain or respond (McLiney v Minster [1911] VLR 347; Kenlin v Gardiner [1967] 2 QB 510; DPP v Hamilton (2011) 33 VR 505.)
If a police search or arrest is conducted unlawfully, a police officer is not considered to be acting within the execution of the law, and the accused is legally entitled to resist (McLiney v Minster [1911] VLR 347; DPP v Hamilton (2011) 33 VR 505).
What is resisting arrest?
Under the law, it is a criminal offence to “assault, resist, obstruct, hinder, or delay” an emergency services worker, including police officers. For example, should you fail to comply with a police officer’s lawful arrest—actions such as fleeing or physically striking the officer—you may face charges of resisting arrest. Furthermore, physically preventing a police officer from arresting someone else, or warning an individual actively engaged in criminal activity of the police’s presence may also constitute resisting arrest.
Police powers to arrest
Police are authorised to make an arrest if they believe or reasonably suspect that an individual has committed an indictable offence (including indictable offences triable summarily) or if there is an outstanding arrest warrant against the individual, as stipulated by section 459(1) of the Crimes Act 1958 (Vic).
During the arrest process, the officer is required to inform the individual that they are under arrest and provide the reasons for the arrest. Additionally, it must be clearly communicated by the officer that if the individual is not under arrest, they have the right to refuse the officer’s request to accompany them back to the police station.
A person is considered legally under arrest when a police officer explicitly states that they are under arrest and that they must accompany the officer to the police station, indicating that the individual no longer has the freedom to choose otherwise.
Hinder police
A person may be charged with ‘hinder police’ in circumstances where a person takes actions to prevent a police officer from performing their duties. The courts define the term hinder as ‘any act of interference or obstruction which makes the duty of a police officer substantially more difficult of performance’ (Taufahema v R (2006) 162 A Crim R 152, 161, quoting Leonard v Morris (1975) 10 SASR 528, 531 (Bray CJ)).
An example of this charge can be found in the case of Leonard v Morris, in which the appellant had been convicted of hindering police by repeatedly swearing and verbally ‘butting in’ when a police officer was attempting to interview a witness to an earlier alleged breach of the peace.
Common instances of ‘hinder’ include interfering with a police officer’s attempt to arrest another person or obstructing a police officer’s access to public land. Another example would be alerting someone to the impending arrival of the police. The determination of guilt in such cases will depend on the specific facts and circumstances surrounding each incident.
Assault police
A person may be charged with assault of a police officer under section 51 of the Summary Offences Act 1966 if they vigorously resist or struggle against police efforts during an arrest. The charge escalates to a more serious assault offence if a police officer is injured during the incident. For more information, refer to our ‘Assault Emergency Worker’ page, which addresses the range of offences related to assaulting an emergency worker, police officer or other protected worker.
Originally, the offence under section 51 of the Summary Offences Act 1966 specifically addressed assaults and related actions against on-duty police officers only. Section 14 of the Sentencing Amendment (Emergency Workers) Act 2014 then expanded the offence to include the broad range of people who perform emergency work. As the section historically only related to conduct against police officers, case law primarily only considers the offence concerning police officers.
Defences
A defence to a resisting arrest charge may be applicable if you can demonstrate a lack of intent to resist. For instance, if you were unaware that an arrest was being made, this could serve as a valid defence. Additionally, if you were experiencing a mental impairment at the time of the arrest, this too may qualify as a defence.
Should a court find your arrest to be unlawful—for example, if the police were unable to establish reasonable suspicion of your involvement in a crime—you may defend against the charge by asserting your right to use reasonable force to resist such an arrest.
Other possible defences include a reasonable mistake concerning the facts of the situation or disputes over the facts of the charge itself. However, given the complexities involved in these matters, it is crucial to seek the advice of an experienced legal practitioner to ensure that the best possible course of action is taken in your case.
Questions to consider
Can the prosecution make out their case? Did you comply with police orders? Did you intentionally hinder the police? In what circumstances? Was the arrest or intended arrest lawful? Do you have a defence? If you are pleading guilty, what can you do to minimise your sentence?
If you have been charged, it is crucial to contact us to discuss your case. The decision to plead guilty carries significant consequences and should only be made following thorough consultations with a criminal lawyer.
You should discuss your options with an experienced criminal lawyer as soon as possible.
The maximum penalty
The offence is subject to a maximum penalty of 6 months imprisonment (Summary Offences Act 1966 s51).
Where the case will be heard
Resisting arrest cases are typically heard in the Magistrates’ Court of Victoria. However, if the matter is related to a more serious charge for an indictable offence and there is consent, it may be heard in a higher court (Criminal Procedure Act 2009 s242).
What to do if charged with resisting arrest
The legislation
SUMMARY OFFENCES ACT 1966 – SECT 51
Assaulting, etc. emergency workers, custodial officers, youth justice custodial workers or local authority staff on duty
- In this section—
custodial officer on duty and custodial officer have the same meanings as in section 10AA of the Sentencing Act 1991;
emergency worker on duty and emergency worker have the same meanings as in section 10AA of the Sentencing Act 1991;
youth justice custodial worker on duty and youth justice custodial worker have the same meanings as in section 10AA of the Sentencing Act 1991. - A person must not assault, resist, obstruct, hinder or delay an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty.
Penalty: 60 penalty units or imprisonment for 6 months. - A person must not assault, resist, obstruct, hinder or delay a member of staff of a local authority in the execution of the member’s duty under this Act.
Penalty: 60 penalty units or imprisonment for 6 months. - A person must not assault, resist, obstruct, hinder or delay a person lawfully assisting an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty.
Penalty: 60 penalty units or imprisonment for 6 months. - In addition to imposing a penalty under this section, the court may order and award a sum sufficient to cover any damage which an emergency worker, a custodial officer, a youth justice custodial worker or a member of staff of a local authority or a person lawfully assisting an emergency worker, a custodial officer or a youth justice custodial worker has sustained by the assault, resistance, obstruction, hindrance or delay.
- A sum awarded under subsection (5) may be recovered in the same manner as the penalty.
