Offence to assault or obstruct police officer

From failing to give your name and trying to escape, resisting arrest and striking a police officer.

Have you neen charged with Assaulting or Obstructing a Police Officer and are and looking for more information?

A charge of Assaulting or Obstructing Police is often charged with other more serious offences (often called the “substantive charges, but is also commonly seen where a person who has never had any real interactions with police find themselves in a negative situation with police which escalated.

Murray Torcetti Lawyers prepare a Defence Assessment for all our clients. If you have been charged with Assaulting or Obstructing a Police Officer, a Defence Assessment will take some of the uncertainty out of the situation and help you plan the best approach moving forward. More information about the Defence Assessment can be found here.

What does the Prosecution need to prove beyond resonable doubt?

Charges can be broken down it the ‘elements’ of the offence where the lawyers then examine the evidence the police may hold and your instructions to test the strength of the charge. The “elements” are the puzzle pieces of a charge. If all elements can be proven beyond reasonable doubt and no defences are raised successfully at a trial, you could be found guilty of the charge. Below are the elements of the charge.

Element 1 - A person

Element 2A - Assaulted

Element 2B - Obstructed

Obstruct includes hinder, resist and attempt to obstruct. This element has a wide scope and captures a range of behaviours from running away from the officer, giving a false name or not giving your name to resisting arrest to more serious situations and facts.

A person who obstructs a police dog or police horse under the control of a police officer in the performance of the police officer’s duties is taken to obstruct the police officer.

Element 3 - A Police officer

This element is self-explanatory but extends the meaning of “police officer.

See definitions in the Act, “a police officer of a police force or service of another State or the Commonwealth who is, for the time being, performing duties for the police service”. Then over to police service meaning the Queensland Police Service.

For instance, say the NSW police have sent officers to Queensland for the execution of an interstate warrant and you obstruct or assault them, the QLD law will operate as it they were QLD police officers.

Element 4 - In the performance of the officer’s duties

The police officer must be obstructed or assaulted whilst they were performing a lawful exercise of their duties. Your lawyer will check to ensure the police had the power to do whatever lead to the incident. It should be noted that even if a substantive charge is withdrawn or is unsuccessful the initial interaction is not then unlawful. For instance, if the police enter your house and find drugs, and there is an obstruct charge in addition to any possession charges, if the drug charges are unsuccessful the obstruct charge may well remain.

Some of the things your lawyer will be aware of

Where is the source of the charge at law?

What is the maximum penalty for the charge

What court will hear the charge?

Are there alternate charges? or Risk Factors?

In some circumstances, the police may have charged you with assaulting or obstructing police under the Police Powers and Responsibilities Act, but the facts might raise the more serious offence of Serious Assault under the Criminal Code which has a maximum penalty of 7 years (or 14 years in some circumstances).

Also, the police in some circumstances can choose to issue an infringement notice for the offence instead of sending to you court. If an infringement notice is issued, it will not result in an in entry on your “court outcomes” record which might have implications for employment, or a higher risk of a conviction being recorded.

The Penalties and Sentences Act 1992, section 108B require community service to be imposed where the offence occurred in public and the defendant was adversely affected by alcohol.

What are some of the Defences to Assaulting or Obstructing a Police Officer

Self-Defence – Section 271(1) of the Criminal Code

Like many other defences in criminal law the defence of self-defence is complicated and more nuanced than “they hit me first”. The defence has limitations on the force used in different circumstances. Your lawyer will need to review the facts, law and your instructions to determine if the defence is open to you and form a strategy to wield the defence in a way that best works in your unique case.

Mistaken Identity

This not a "defence" as the law applies see it, but an approach the defence might take in preventing the prosecution from proving the 1st element above to the standard of beyond reasonable doubt.

Can the Prosecution prove it was you? In some cases, the identity of the person who did the assault causing the bodily harm might not be readily identified. An example would be if there the assault occurred in a dark part of town, the complainant was near sighted and drunk and only a poor description of the defendant was given.

The Police were not acting lawfully

Compulsion – Duress s 31(1)(c) Criminal Code

In certain circumstances the law offers a defence if we are compelled to act to resist the violence of others. The Queensland Criminal Code calls this ‘compulsion’ and says, for present purposes, that a person is not criminally responsible for an act if that person does the act because it is reasonably necessary to resist a threat of actual and unlawful violence to themselves or property.

Like all defences. The law of defences is nuanced. Your lawyer will need to review the facts, law and your instructions to determine if the defence is open to you and form a strategy to wield the defence in a way that best works in your unique case.

Can the charge be 'Case Conferenced'?

For criminal charges in Queensland, your defence lawyer will review your charges, the possible evidence and your instructions to start negotiating the charges. The aim of case conferencing for defence lawyers is to place you in the most favorable position by resisting charges and facts that are not supported by evidence, law or contrary to your instructions.

Case Conferencing – Disclosure

At the start of your case, you are provided the police version of the facts but not the evidence relied upon. Your lawyer will seek the disclosure of materials to clarify the facts further or determine the strength of the case against you.

Example: After an incident at the local pub, you have been charged with assault occasioning bodily harm. The police facts note the incident was recorded on CCTV and have sought the CCTV be disclosed to see if the footage supports the police version (or have left out important facts supporting your version) and medical records.

Case Conferencing – Facts

You might wish to plead guilty to the offences, but the police materials are different to your version of the events. Defence lawyers propose amendments, additions or removal of facts so the matters do not need to go to hearing. From a defence perspective, the purpose of conferencing on the facts is to remove irrelevant information or facts that may result in a higher sentence.

Example: CCTV records you striking a person several times. The police facts state it was "5 punches", but the footage is unclear. Through case conferencing the facts were amended to “struck the victim a number of times” or “the complainant was struck twice”.

Case Conferencing – The Law

If the charges are not supported by the evidence the prosecution has, the lawyers suggest the charge be withdrawn or reduced to a lesser offence. If the law provides a mitigation or defence to your charges, your lawyer will conference with the prosecution to seek the charge be withdrawn.

Example: You have been charged with assault occasioning bodily harm, however the medical evidence does not support the charge. As a result of conferencing, the charge was amended to the less serious charge of common assault.

Case Conferencing – Charges

Charges are not set in stone after the police issue with the notice to appear or release you on bail. Often the police will “over charge” and though the process of case conferencing more appropriate charges are agreed to.

Example: The police do a search of your property and locate your phone. After searching your phone a few text messages are found where you have offered to supply a few people (or even one person a number of times) the cannabis. The police charge you with trafficking in cannabis. After reviewing the evidence the defence lawyers and prosecution agree that 3 charges of supply is far more appropriate.

What you can do to mitigate penalty if you are pleading guilty to Assaulting or Obstructing a Police Officer

Demonstrate Employment

Demonstrating employment through a letter of employment assists the court to see you are productive and able to maintain responsibilities whilst being a member of the community. The letter could address your responsibilities, how long you have been employed and your attitude towards work.

Your Murray Torcetti Lawyer will review the letter of employment ahead of court to ensure all important points are addressed in the letter.

Letters of Reference

Character references assist the court by showing you have other parts to your character. You are more than a moment in time as read out by the prosecutor. You may be an active member of the community, provide support to a person in need or be able to demonstrate this was out of character.

Before the court date your Murray Torcetti Lawyer will review the references to ensure the letters achieve what is intended by the people who have taken the time and effort to assist you at your sentencing date.

Letters of Remorse

Attend Counselling

Offer compensation / Resitution

Before making any offers of compensation or restitution it is important to make you have been given legal advice. You may be admitting guilt where you have a defence. Or, if not done correctly you may be seen to be attempting to 'buy your way out of trouble' which will not go down well for you in court. However, genuine offers of compensation are one way to demonstrate genuine remorse for you behaviour to both the complainant and the courts.

Our Lawyers who defend this offence

Solicitor & Director

James Torcetti

Solicitor

Grant Young

5 Star Google Reviews

Brisbane Office

Suite 10 Level 12 95
North Quay Brisbane 4000

07 5414 4209

Caboolture Office

4/13 King Street

Caboolture, Queensland

07 5414 4209

T.M - 2021

I must say, when simply Listening is the hardest thing people find to do properly on this planet, Miles is fantastic. His ability to listen come from a fantastic Attitude overall. I was very very happy with all that this firm did for me. I have absolutely no hesitation to recommend these guys to any of my friends or colleagues. Thank you.

B.N - 2021

Mr James Torcetti, Legal Practice Director, had total control of my case and represented me each time we went to court. I didn't have to appear in court except for the first time and the main time, being the final outcome. James gave me confidence and my self respect back, with his high standard of ethics. James made me feel comfortable and went out of his way to do his best to keep on top of things referring to my case, for the best outcome. I was overjoyed with the outcome of my case as I was convinced I would be walking out the back door instead of the front door and James was very truthful with me and never sugarcoated my situation. James also gave me the opportunity to make weekly payments to pay off his account.
I highly recommend Mr James Torcetti, and would definitely use his services again, however I hope I don't have to.

M.C - 2021

Murray Torcetti Lawyers were engaged to assist with providing legal advice for a criminal case and to get the best possible outcome without prejudice or judgment. It has been a long hard haul for the family and we have had a successful outcome. This didn’t come easy for both parties, there were some challenges but all the way through we were kept informed of progress and potential outcomes and potential strategies to ensure the best result. They have been a brilliant to deal with (even when there was bad news), they have remained compassionate, professional and responsive at all times and for this my family is very grateful. Well done and thank you.

Assaulting or Obstructing Police Element Sheet

Download the Evade Police "element sheet' the Murray Torcetti Lawyers may use when reviewing the charge.

Download the Element Sheet

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Offence to assault or obstruct police officer

Have you neen charged with Assaulting or Obstructing a Police Officer and are and looking for more information?

What does the Prosecution need to prove beyond resonable doubt?

Some of the things your lawyer will be aware of

What are some of the Defences to Assaulting or Obstructing a Police Officer

Can the charge be 'Case Conferenced'?

What you can do to mitigate penalty if you are pleading guilty to Assaulting or Obstructing a Police Officer

Our Lawyers who defend this offence

Solicitor & Director

James Torcetti

Solicitor

Grant Young

Brisbane Office

Suite 10 Level 12 95 North Quay Brisbane 4000

07 5414 4209

Caboolture Office

4/13 King Street

Caboolture, Queensland

07 5414 4209

Assaulting or Obstructing Police Element Sheet

Suite 10 Level 12 95
North Quay Brisbane 4000