Assault or Obstruct police
The charge of assault or obstruct police is a very common charge in Queensland and one that people who otherwise have never been in trouble with police are often charged with.
Section 790 of the Police Powers and Responsibilities Actdefines the charge of obstruct or assault police as;
- A person must not
- assault a police officer in the performance of the officer’s duties; or
- obstruct a police officer in the performance of the officer’s duties.
(a) if the assault or obstruction happens within licensed premises, or in the vicinity of licensed premises—60 penalty units or 12 months imprisonment; or
(b) otherwise—40 penalty units or 6 months imprisonment.
A police officer can include a police dog or horse.
As you can see from the legislation there are two distinct charges that is obstructing police and separately assaulting police. As could be easily guessed the charge of assaulting police is more serious even through the maximum penalty is the same as the charge of obstructing police.
What is obstruct?
The act defines obstruct to include any of the following;
- Attempt to Obstruct
What is assault?
The definition of assault is found in the Queensland Criminal Code and includes;
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
In this section— applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
As you can see the definition of assault is very wide and includes not only actual striking of someone but also just an attempt to actually strike someone.
How do these charges generally arise?
In our experience this offence is using committed in the following circumstances;
- A person is at a licenced premises and some sort of disturbance occurs. Security removes the person and the police are called. While attempting to speak to the person the police allege the person would not follow their instructions and the person is ultimately arrested for obstructing police.
- The police are called to a disturbance, sometimes in a family home but more likely a premises selling alcohol. The police seek to speak to a person who remains allegedly unco-operative. The police make a decision to arrest the person, that person resists the arrest and during the struggle a police officer is struck.
In the overwhelming amount of cases there is alcohol or drugs involved.
What court will deal with this offence?
In general the Magistrates court will deal with this charge. Though the possibility exists it could be heard in the District Court it rarely is.
What penalties can be imposed?
The penalty that would be imposed depends on a number of factors including;
- The exact allegations
- What injuries if any was suffered by the police
- The defendant’s previous criminal history
From July 2016 to June 2019 the Queensland Magistrates court dealt with 5,637 cases of Obstruct police. The penalties imposed were broken down as follows;
In addition If the police allege that the obstruction or assault took place in a public place whilst the defendant was affected by an intoxicating substance than as part of the punishment the court must order that the defendant perform a period of community service. The community service cannot exceed 240 hours if the Magistrate Court hears the matter.
Are there defences?
There are a number of potential defences and these include;
- Self Defence
- That it was not defendant who assaulted or obstructed the police
- That the police were not executing their official duties at the time
Could the prosecutor drop the charge?
It is sometimes possible to negotiate with the prosecutor to reduce or withdraw the charge. Negotiations are known as case conferencing in Queensland. Whether negotiations would be successful depends very much on what is alleged and how strong the case is. Often in these cases there is either CCTV footage or footage from the police officers body worn camera and these can be viewed to determine the strength of the police case.
Will a conviction be recorded?
The courts must consider whether to record a conviction or not. The types of things that courts take into account include;
- the nature of the offence; and
- the offender’s character and age; and
- the impact that recording a conviction will have on the offender’s
- economic or social wellbeing; or
- chances of finding employment.
In addition whether a person has previous criminal offences will be an important factor for the court in determining whether to record a conviction.
Remember if a conviction is recorded this can impact your ability to obtain employment or travel overseas.
Should I engage a lawyer to apply for handle my charge?
While we obviously have a vested interest in people using a lawyer for their charge we are of the strong opinion that this is a charge you should always use a criminal defence lawyer for a charge of obstruct or assault police.
Some advantages to using a lawyer includes;
- It will increase the chance of a successful negotiation with the prosecutor
- Lawyers know what the court wants to hear
- They can improve the chance the court will not record a conviction
- They will make the whole process easier and less stressful
- You will have at court someone on your side fighting for the best result for you
If I’m going to engage a Lawyer why should I engage Clarity Law?
At Clarity Law we are experts in Queensland criminal law. We are in the court every single day helping people with criminal charges. We have handled hundreds of obstruct/assault charges.
We also have upfront fixed fees with no hidden charges. Our prices are on our website unlike most law firms. The prices are listed at www.claritylaw.com.au/prices.html
We are also a no pressure firm which means feel free to ring, we can give initial advice and help but you aren’t pressured to engage us but of course we are more than happy if you do.
We cover all courts in South East Queensland from Southport to Gympie and out to Toowoomba. We are also a criminal law firm, we don’t do any other type of law so we are in the courts every day helping people with charges like this.
We have offices at;
- Sunshine Coast
- Gold Coast
How do I get more information or engage Clarity Law to act for me?
If you want to engage us or just need further information or advice then you can either;
- Use our contact form and we will contact you by email or phone at a time that suits you
- Visit our website at www.claritylaw.com.au
- Call us on 1300 952 255 seven days a week, 7am to 7pm
Disclaimer: This article is for general information and is not legal advice. The law or the practice of the court may have changed since this article was published. Always obtain legal advice if you need to appear in court.
Liability limited by a scheme approved under professional standards legislation