By James Cobiac
Assault Police charges are becoming more common in South Australia, depending on the circumstances of the alleged offence, the consequences for the indictable form of offending can be very serious. There are specific laws that have been enacted to deter assaults on police officers whilst they are lawfully discharging their duty. The police may charge a defendant under the Criminal Law Consolidation Act 1935 (SA) (CLCA), or under the Summary Offences Act 1953 (SA) (SOA). It is important, however, that the charges are properly made out; often it’s the case that a summary charge of Assault Police is actually the much less-serious disorderly conduct or resist arrest. Negotiations can often obtain the acceptance of a plea to a lesser offence.
A charge under of the more serious indictable variety will be made out under Section 20 of the Criminal Law Consolidation Act 1935 (SA). A Section 20 assault involves the intentional application of force, or physical contact, by a person, either directly or indirectly, against another person knowing that they might reasonably object to the application of that force in the circumstances. An assault can also exist if the defendant threatens to do any of the above to the victim and the victim believes on reasonable grounds the defendant will carry out the threat. If any of the above conduct is undertaken in relation to a police officer, and the defendant is aware that the individual is a police officer acting in the course of their lawful duties, the charge will be treated as an aggravated one. This means that the maximum penalty increases significantly.
The alternative lesser charge open to the police exists under the SOA. Under section 6 anyone who assaults a police officer whilst the officer is executing their duties commits an offence. Any conviction under this section can require the offender to compensate the officer who was assaulted in the course of executing their duties (s 6(3)).
If you have been charged with either of these offences in relation to a police officer is important to know the defences to the charge that may be available to you. For a charge to be aggravated under the CLCA the person assaulting the officer must know that the person is a police officer acting in their capacity as a police officer. If it is not readily apparent to the defendant that the person attempting to arrest them, or engaging in the conduct that triggers the alleged assault, is a police officer then the charge cannot be treated as an aggravated one. This circumstance may arise when an undercover police officer, or off-duty officer, fails to identify themselves to the defendant before arresting them. If this is the case an argument of self-defence might become available to the defendant on the basis that they were defending themselves from a perceived attacker, not a police officer trying to undertake an arrest.
Additionally, if a police officer uses more force than is necessary to discharge their duty and the defendant defends against the force then the above charges will likely fail. Even though the Court views it as important that police officers are protected while carrying out their lawful duties, any failure to lawfully exercise those duties will undermine any charges that follow. It is a matter of balancing the need for public protection generally and any abuse of that power exercised in the course of protecting the public.
The tendency of Police to seek to charge the highest possible offence that is suggested by alleged conduct means that many acts that may be as slight as Disorderly Conduct, Resist Arrest or similar minor offending can sometimes see an indictable information laid in the Magistrates Court. It is important that every avenue is exhausted in ensuring that the charge ultimately proceeded with bears relevance to the alleged offending.
If you have been charged with criminal offending in South Australia it is important to seek advice from a criminal lawyer. If you’ve been charged with assaulting police it’s crucial to seek advice as to whether a defence exists or whether a lesser charge is likely to be accepted on a plea. Culshaw Miller Criminal lawyers in Adelaide are available 24/7 to advise you on any matters in relation to your assault police charges. If you would like advice please do not hesitate to contact Tom Cuthbertson on (08) 8312 4520 (24 hours), or (08) 8464 0033 to speak with one of our lawyers.