Resisting a lawful arrest can lead to criminal charges in NSW, even if you are not ultimately charged with or convicted of the offence police were initially investigating.
However, police powers have legal limits. Whether a resisting police charge can be proved depends on the alleged conduct and whether the officer was acting lawfully in the execution of their duty.
Understanding your rights and obtaining legal advice promptly can help you respond appropriately.
Police do not have an unrestricted power to arrest someone simply because they wish to ask questions.
Under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), an arrest without a warrant generally requires:
Those purposes include protecting safety, preventing further offending, preserving evidence and ensuring a person appears before a court.
Other arrest powers can apply, including arrest under a warrant. The legal basis must be assessed against the circumstances of the particular arrest.
Section 546C of the Crimes Act 1900 (NSW) makes it an offence to resist or hinder a police officer in the execution of their duty. It also covers inciting another person to assault, resist or hinder an officer acting in that capacity.
The maximum penalty under section 546C is 12 months’ imprisonment, a fine of 10 penalty units, or both.
The prosecution must prove the required elements beyond reasonable doubt. A central issue is whether the officer was lawfully carrying out their duty.
The offence is broader than resisting arrest: it can concern interference with other lawful police duties. Different charges may also arise where an incident involves alleged violence or obstruction.
Resisting generally involves active opposition to an officer’s actions. Depending on the circumstances, allegations may involve struggling, pulling away or physically attempting to prevent police from completing a lawful arrest.
Hindering is a related but distinct concept. Conduct that does not amount to active resistance may still obstruct or impede an officer.
It is therefore unsafe to assume that lying down, refusing to move or otherwise declining to cooperate can never result in an offence. The conduct, the police power being exercised and the precise charge all require assessment.
Yes. An arrest can be lawful even if the person is later found innocent of the suspected offence, provided the legal requirements for arrest were satisfied at the time.
A resisting police charge must be considered separately from the original allegation. The absence of another charge does not automatically determine whether the arrest was lawful or whether resistance occurred.
Your lawyer can examine both the basis for the arrest and the conduct alleged to constitute resistance.
Do not physically resist or encourage others to intervene. Disputing an arrest through force can escalate the situation and expose you to further allegations.
Instead, remain calm, ask why you are being arrested and request an opportunity to speak with a lawyer. You can calmly state that you dispute the arrest without physically obstructing police.
As soon as practicable, record what happened, identify any witnesses and preserve relevant material. If you have injuries, seek medical attention and document them.
The lawfulness of an arrest can be examined afterwards through legal proceedings or an appropriate complaint process. Your belief that an arrest was unlawful does not, by itself, establish a defence.
People in police custody retain important rights. Depending on the circumstances, these include being informed of the reason for arrest, receiving relevant custody information and obtaining legal advice.
You generally have a right to silence when questioned about an alleged offence. However, exceptions apply, including obligations to provide certain identification or other information. Special rules may apply in some serious investigations.
Seek legal advice before deciding whether to participate in an interview or answer questions about an allegation.
You can also raise concerns about your treatment and obtain advice about making a complaint.
Police may use force that is reasonably necessary to carry out a lawful arrest. That power does not authorise unlimited or unreasonable force.
If force was used, its lawfulness depends on the circumstances. Relevant evidence may include body-worn video, CCTV, witness accounts and medical records.
A lawyer can assess how that evidence affects the charge or any separate complaint.
A lawyer can review the police account, identify the power relied upon and assess whether the prosecution can prove its case.
Depending on the evidence, disputed issues may include:
The appropriate response will depend on the facts and the offence charged. No particular outcome can be guaranteed.
If you are under investigation or have been charged with resisting arrest, hindering police or a related offence, obtain advice promptly.
Our Sydney criminal lawyers can assess the allegations, explain your options and prepare your matter for court.
Call (02) 9261 8640 to arrange an appointment. For urgent criminal law assistance, call our 24-hour line on 0412 423 569.