Resisting Arrest and Police Powers of Arrest

The Police are permitted to arrest you in specific circumstances. For example, if they believe that you have committed a crime, or there is a valid court-ordered warrant out for your arrest.

Whilst it is considered an offence to resist arrest, the Police must comply with their powers of arrest.

Police Powers of Arrest

The Police may arrest you if they believe or reasonably suspect that you have committed an indictable offence (including indictable offences which may be heard and determined summarily), or there is a warrant out for your arrest.[1] If you are arrested by a Police Officer, they must tell you that you are under arrest and the reasons why you are being arrested.

A Police Officer cannot use force that is disproportionate to the force considered to be reasonably necessary to apprehend a person. If a Police Officer uses disproportionate or unreasonable force, it may be considered to be assault and you may have a claim against the arresting officer.

If you feel you have been treated unfairly during arrest or have a complaint, you can lodge it with the Police Conduct Unit or the Independent Broad-based Anti-corruption Commission. If you suffer physical injury as a result of being arrested, you can also sue Victorian Police for damages. If you think you have a claim, it is essential that you contact a lawyer for further advice.

Resisting, Obstructing and Assaulting Police

It is an offence to resist arrest by a Police Officer or prevent the arrest of another person.[2] The law makes it an offence to ‘assault, resist, obstruct, hinder or delay’ an emergency services worker (which includes a Police Officer).[3]

For example, if you refuse to comply with the orders of a Police Officer attempting to arrest you (such as running away or striking the Police Officer) you could be charged with resisting arrest.

Additionally, if you physically obstruct a Police Officer from arresting another person or alert an offender who is currently committing a criminal offence to the presence of Police, you could be charged with the offence of resisting arrest.

Elements of the Resisting Arrest Charge

In order to establish the offence of resisting Police (per s51 Summary Offences Act), the Prosecution must prove beyond a reasonable doubt that:

  1. the complainant was a police officer.
  2. the complainant was “on duty”.
  3. the accused knew that the complainant was a police officer, or knew that the complainant was probably a police officer.
  4. the accused resisted/obstructed/assaulted the complainant.
  5. the accused intended to resist/obstruct/assault the complainant.
  6. the accused’s actions were without lawful excuse.

Penalty for Resisting Arrest

If you are found guilty of resisting arrest, the maximum penalty for this offence is a fine or up to 6 months imprisonment.[4] Further, if your actions whilst resisting arrest cause damage or injury to a Police Officer, an order can be made to compensate them for damages.[5]

If you are charged with assaulting a Police Officer, these matters can be charged either under s51 of the Summary Offences Act 1966 or s31 of the Crimes Act 1958. The maximum penalty if you are charged under the Summary Offences Act is a fine or 6 months imprisonment. The maximum penalty if you are charged under the Crimes Act is 5 years imprisonment.

These charges are taken very seriously by the Courts and it is important that you seek urgent legal advice if you are charged with any of the above.

Defences to the Resisting Arrest Charge

You will have a defence to your resisting arrest charge if you can establish that you lacked the intention to resist arrest. For example, if you did not know you were being arrested. You will also have a defence if you were suffering from a mental impairment at the time of your arrest.

If your arrest is deemed by a Court to be unlawful (such as where the Police cannot establish a reasonable suspicion that you committed a crime) you will have a defence to your resisting arrest charge. You are permitted to use reasonable force to resist an unlawful arrest.

You will also have a defence of reasonable mistake or a factual dispute relating to the charge.

However, it is important that you consult an experienced legal practitioner so that the appropriate action can be taken for your case.

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[1] Crimes Act 1958 (Vic) s 459(1).
[2] Summary Offences Act 1966 (Vic) s 51(2).
[3] Summary Offences Act 1966 (Vic) s 51(2).
[4] Summary Offences Act 1966 (Vic) s 51(2); Victoria Police Act 2013 (Vic) s 3.
[5] Summary Offences Act 1966 (Vic) s 51(5).

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