Assault Police: Offences in South Australia

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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.

Sexting & Child Pornography: South Australian Law

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The explosion in recent years of the use of apps such as Facebook, Snapchat and others by young adults- including high school age children- raises a worrying question about the particular issue of ‘sexting’ and the serious legal risks associated with it. The New South Wales Government defined ‘sexting’ as something which “…involves sending suggestive or sexual images through mobile phones that could be posted on the internet or forwarded onto other people.” The question arises in the situation where a young adult, under the age of seventeen, may send their partner, who may well be be slightly above the age of seventeen or below the age of eighteen themselves, a sexually explicit image via one of these applications. Should the recipient’s possession of that material come to the attention of the authorities then it would likely be a breach of Section 63A(1) of the Criminal Law Consolidation Act 1935 (SA):

Any person who is in possession of child exploitation material (child pornography) knowing of its pornographic nature; who attempts to obtain, or makes a step towards obtaining, exploitation material is guilty of an offence.

The federal law would also catch such behaviour under Section 474.19(A) of the Criminal Code Act 1995 (Commonwealth) which creates an offence to use phone or internet services to access, send, publish or produce  material that is child pornography. It is also the case that the person who created and sent the image, even it that image was an image of themselves, may fall foul of the more serious allegation of production of child exploitation material (child pornography) pursuant to Section 63 of the Criminal Law Consolidation Act as follows;

Any person who knowingly produces, or takes part in any stage of the production of, child exploitation material (child pornography) is guilty of an offence. It is also an offence to distribute, or take part in any stage of the distribution of, child exploitation material whilst knowing of it pornographic nature.

A defence will exist to a charge of possession of child pornography in South Australia if a defendant can demonstrate that the offending material came into the possession of the accused person unsolicited; that is without the accused taking steps to access or encouraging  or consenting to its arrival, and that as soon as that person became aware of the material being in their possession and the pornographic nature of same takes reasonable steps to destroy or otherwise get rid out it (Section 63A(2) of the Criminal Law Consolidation Act) this can apply in a vary of situations; such as if an accused person were to receive a pornographic text message from an under age person without having asked, encouraged or consented to it, where the sender hoped to gain the affection of that person; or alternatively if a person had accidentally accessed child pornography on the internet and immediately deleted that material. It is important to note that it is a defence where in the onus of proof is reversed, that it is up to the defendant in such circumstances to prove on the balance of probabilities that the material was unsolicited and that steps were taken to remove or destroy it at the earliest opportunity.

This area is highly fraught in that it sees the criminialisation of a class of persons who, on a moral basis, such as the example of two consenting sixteen year olds, would not by any reasonable measure of community standards, be considered to be behaving in a criminal fashion or with anything more sinister that perhaps youthful exuberance. There are serious consequences that can flow from a conviction in relation to child exploitation material, much like any under age sex offence such as unlawful sexual intercourse or gross indecency, and the ramification of a conviction will follow a convicted person for life. In the latter examples a convicted person may be required to be subject to the conditions imposed by the Child Sex Offender Registration Act for life.

If you have concerns that you may or have already been charged or suspected of an unlawful sexual intercourse or child pornography offence, it is important that you consult with a criminal lawyer immediately. For 24 hour advice or attendance by one of our team, Culshaw Miller Criminal Lawyers is available on (08) 8312 4520. If you wish to make an appointment call 08 8464 0033 or email tom.cuthbertson@culshawmillercriminallawyers.com.au to make arrangements.