Resist or hinder police in the execution of duty – s 546C of the Crimes Act 1900

The word ‘resist’ is defined as follows:

“Resistance implies the use of force to oppose some course of action which the person resisted is attempting to pursue”: R v Galvin (No 2) [1961] VR 740 at [749].

“There is a view that something more than mere obstruction is necessary”: R v Appelby (1940) 28 Cr App R 1 at [5] 

So ‘resist’ actually requires physical resistance during a lawful arrest.

This is defined in Donnelly v Jackman [1970] 1 WLR 562 as an interference or obstruction that makes it more difficult for a police officer to perform his or her duty.

Unlike ‘resist’, no physical contact is required to be charged with this offence.

A ‘hinder’ usually occurs when a third person intervenes during the arrest of another person.

This is when police are acting within the ambit of their duty. In other words, their duties are performed legally.

In Re K [1993] FCA 830 at [25] – [26], the court held that there must be a beginning and an end to an officer’s duty. In this case, the police were not acting in the execution of their duty because although police were “on duty” controlling a crowd and looking for weapons, this task had been completed when the offence had taken place.

An example of police acting illegally is when unreasonable force has been used to apprehend a suspect. In such an instance, police cannot be said to be acting ‘in the execution of duty’.

The maximum penalty for this offence is:

• 12 months’ imprisonment  
• or 10 penalty units ($1,100)
• or both

Please note that the most serious cases attract the maximum penalty.

This option is recommended only where you accept that you:

• committed a resist or hinder offence; and
• it was against a police officer; and
• the police officer was acting in the execution of duty.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court exercises a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction.
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
  • This is the most common penalty for the offence of AOABH.
• Community Corrections Orders (“CCO”)
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this offence, the Prosecution must establish beyond a reasonable doubt that you:

• committed as resist or hinder offence; and
• it was against a police officer; and
• the police officer was acting in the execution of duty.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• The police were not acting in the execution of their duty
• You were not resisting or hindering
• The person was not a police officer
• Honest and reasonable mistake of fact: You honestly believed, on reasonable grounds, that the other person was not a police officer, even though police do not need to prove that you knew that the other person was a police officer.
• Self-defence: A person subject to an unlawful arrest is entitled to use reasonable force to resist arrest. McLiney v Minister [1911] VLR 347 at [351]
• Duress: Circumstances or the threats of another compelled you to act in the manner you had. 
• Necessity: Your actions were necessary to prevent a greater harm from occurring