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This information is provided to make the law and legal rights accessible.
The law is intended to serve everyone and it is important it does so.
Knowledge is, as always, power.
What the prosecution must prove.
The prosecution must prove that:
1. The defendant assaulted, resisted or obstructed the complainant.
2. That the complainant was a police officer.
3. The officer was acting in the due execution of their duty.
What it means.
A police officer who exceeds their authority is not acting in the execution of their duty. Examples include a police officer making an unlawful arrest, using excessive force, or carrying out an unlawful search.
If the evidence fails to prove the officer was acting in the execution of their duty a person is not guilty. It does not matter that the evidence proves an assault, obstruction, or resistance.
The High Court says a police officer acts in the execution of their duty from the moment they embark upon a lawful task connected with their functions as a police officer and until it is completed.
The prosecution do not need to prove the defendant knew the complainant was a police officer.
An assault includes touching, moving or otherwise applying force of any kind to someone else directly or indirectly without consent. An assault includes striking, touching, moving or otherwise applying force of any kind to someone else directly or indirectly without consent.
An attempt or threat by any bodily act or gesture to apply force of any kind to the person without consent but only if there is an apparent ability to carry through the threat.
Mere words, no matter how threatening, do not constitute an assault on their own. Threatening words can be taken into account in determining whether a bodily act amounts to a threat of violence.
The usual penalties.
When charged under the Criminal Code the maximum penalty for the criminal offence of Serious Assault on a police officer or person assisting them is 7 years imprisonment.
That maximum penalty is increased to 10 years imprisonment if the assault involves spitting or biting, causes bodily harm or the offender was armed or pretended to be armed with a dangerous or offensive weapon or instrument.
The same offences can be charged pursuant to s790 Police Powers and Responsibilities Act 2000 in which case the maximum penalty is 6 months imprisonment of 12 months imprisonment if the offence is committed in or near licensed premises.
A court must impose a community service order in addition to any other penalty if the offence was committed in a public place whilst intoxicated by drugs or alcohol. This only applies if these circumstances are expressly alleged in the wording of the charge and either admitted or proved beyond reasonable doubt.
Penalties for a first offence can range from a fine to actual imprisonment depending on the nature of the assault. Sentences for spitting on or biting a police officer are particularly harsh with sentences of actual imprisonment frequently imposed on even first time offenders
It is important to seek expert advice before dealing with a criminal offence of Assault Police.
Factors that affect the appropriate penalty include the nature of the force, the extent of the force (was it a single or multiple blows), and the extent of injury.
S340(2AA) Criminal Code creates a similar offence with the same penalties for assault a public officer performing a function of their office. A public officer includes:
• An ambulance officer.
• A health employee including a security guard working in a hospital.
• A child protection worker.
• A transit officer.