The Courts in NSW have made it clear that they will punish persons severely if they are found to have assaulted a police officer.
If you have been charged with assault of a police officer, then the prosecution must establish certain elements of the offence beyond reasonable doubt. These include:
1. That you acted in a way that caused another person to fear immediate and unlawful violence OR that you applied physical force to them
An 'assault' can be committed by either (i) putting a person in fear of imminent physical harm OR (ii) by a 'battery', which is an unwanted touching.
In the first case the prosecution must establish that your actions caused the police officer to fear violence and the threat must be immediate. A threat of some form of violence being enacted against the police officer at a later point in time will not be found to be an assault, although this may amount to an offence of Intimidation.
An assault can be committed without you even touching the police officer. In some cases, words you have used or just a look can be held to be an assault.
2. That the other person did not consent to your actions
Where there has been some form of touching or physical contact, then the prosecution must establish that this was non-consensual. An accidental touching is not an assault - such as bumping into somebody's shoulder when walking in the other direction. If you drop the shoulder to make contact, that is intentional contact and would be an assault. Spitting on somebody also constitutes an assault.
3. That you acted intentionally or recklessly
The prosecution must prove that you intended to cause the police officer to fear immediate and unlawful violence, or that you recklessly caused such fear. That is, they must show that you either knew that what you were doing would cause the police officer to fear violence, OR that you were aware that there was a possibility that your actions would result in physical contact.
4. That you did not have a lawful excuse for your actions
5. That the assault occurred during the execution of the police officer’s duty
The prosecution must establish that the assault occurred while the police officer was carrying out their duties as an officer. That is, the assault has to have occurred while the police officer was on the job.
However, s.60(4) of the Crimes Act 1900 provides that a police officer who is not on duty at the time the assault took place will be treated as if they were on duty if the assault occurred:
a. As a consequence, or in retaliation for, actions that the police officer has taken in the execution of their duty, or
b. Because the officer is a police officer.
Tackling a police officer who is playing football, would not constitute an assault as this would be outside the execution of his duty. If it was proven that your tackle was excessive and that you did this purposely because they were a police officer, you could be charged with Assault Police.
You can be guilty of this offence even if you do not know that the person was in fact a police officer.
Penalties
There are a number of different offences that can be charged as assault of police offences. Each carries a different maximum penalty.
1. Assaulting, stalking, harassing, intimidating or throwing a missile at a police officer while they are carrying out their duties. However, this offence occurs where no actual bodily harm has been committed on the police officer. s.60(1) Crimes Act 1900
Max. Penalty: 5 years’ imprisonment
2. Same as (1) above, but where the assault has taken place during a ‘public disorder’. This can include scenarios where there has been a riot or some other disturbance to the peace and safety of the public. s.60(1A) Crimes Act 1900
Max. Penalty: 7 years’ imprisonment
3. Assaulting a police officer and causing the police officer actual bodily harm. s.60(2) Crimes Act 1900
Max. Penalty: 7 years’ imprisonment
'Actual bodily harm' is any harm more than transient and trifling, but need not be permanent. Examples of actual bodily harm are bruises or scratches.
4. Same as (3) above, but where the assault has taken place during a ‘public disorder’. s.60(2A) Crimes Act 1900
Max. Penalty: 9 years’ imprisonment
5. Wounding or causing grievous bodily harm, or recklessly causing bodily harm to a police officer. s.60(3) Crimes Act 1900
Max. Penalty: 12 years’ imprisonment
'Grievous bodily harm' means bodily harm of a really serious kind. Examples are broken bones and fractures, burns, and scarring.
6. Same as (5) above, but where this has occurred during a ‘public disorder’. s.60(3A) Crimes Act 1900
Max. Penalty: 14 years’ imprisonment
Defences
There are legal defences to all kinds of assault even recklessly causing grievous bodily harm. Does your scenario fit into a legal defence? All assaults have the following possible defences:
- Self-Defence – if a person believes that the conduct was necessary to defend themselves or another and the conduct is a reasonable response in the circumstances as the person perceives them, then they are acting in self-defence.
- Defence of Another;
- Defence of Property;
- Identification – have they got the wrong person?
Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.
YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH AN ASSAULT TYPE OFFENCE
1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Photographing your own injuries. Having a doctor catalogue your injuries. Obtaining advice in relation to making a statement to police or not. You need early advice.
2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place and get their details.
3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.
If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.
Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.