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7.4.9 - Statutory Assault

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Introduction

  1. Although s31 of the Crimes Act 1958 contains only 3 subsections, it establishes 5 distinct offences (see, e.g., R v Galvin (No 2) [1961] VR 740):
    1. Assaulting or threatening to assault a person with intent to commit an indictable offence – s31(1)(a).
    2. Assaulting or threatening to assault an emergency worker, youth justice custodial worker or custodial officer on duty (or person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer on duty) – s31(1)(b), (ba).
    3. Resisting an emergency worker, youth justice custodial worker or custodial officer on duty (or person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer on duty) – s31(1)(b), (ba).
    4. Obstructing an emergency worker, youth justice custodial worker or custodial officer on duty (or person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer on duty) – s31(1)(b), (ba).
    5. Assaulting or threatening to assault a person with intent to resist or prevent arrest – s31(1)(c).
  2. There have not been any cases concerning the interpretation of the current provisions in s31. All of the principles mentioned in this topic have been taken from cases concerning previous statutory provisions or similar common law offences. It is assumed that they apply and provide relevant guidance on the current offences.

    Commencement information

  3. Prior to 2 November 2014, s31(b) only covered police officers and protective services officers.
  4. Under amendments introduced by the Sentencing Amendment (Emergency Workers) Act 2014, the range of workers covered was expanded significantly to include ambulance workers, hospital staff and others. The range was further expanded in relation to custodial officers by the Crimes Legislation Amendment Act 2016. On 5 April 2018, the range of workers was further expanded to include youth justice custodial workers by the commencement of Part 8 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. See Emergency workers, youth justice custodial workers and custodial officers, below.

    Definition of assault

  5. "Assault" is defined in s31(2) to mean the direct or indirect application of force to the body of, or to the clothing or equipment worn by, a person. "Application of force" is defined in s31(3) to include the application of heat, light, electric current or any other form of energy, as well as the application of matter in solid, liquid or gaseous form.
  6. Unlike common law assault (see Common Law Assault), an assault under s31(2) must be done with intent to inflict, or being reckless as to the infliction of, bodily injury, pain, discomfort, damage, insult or deprivation of liberty. The assault must also result in the infliction of one of these consequences, although not necessarily the one intended or foreseen.

    Assault with intent to commit an indictable offence – s31(1)(a)

  7. Under s31(1)(a) it is an offence to assault or threaten to assault another person with intent to commit an indictable offence.
  8. Whether or not an offence is indictable is a matter of law to be determined by the judge.

    Assaulting, resisting or intentionally obstructing an emergency worker, youth justice custodial worker or custodial officer on duty – s31(1)(b), (ba)

  9. Under s31(1)(b) it is an offence to assault or threaten to assault, resist or intentionally obstruct an emergency worker, youth justice custodial worker or custodial officer on duty, knowing or being reckless as to whether the person was an emergency worker, youth justice custodial worker or custodial officer.
  10. Section 31(1)(ba) creates a corresponding offence of assaulting or threatening to assault, resist or intentionally obstruct a person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer on duty, knowing or being reckless as to whether the person was assisting an emergency worker, youth justice custodial worker or custodial officer.
  11. The words "assault", "resist" and "intentionally obstruct" in s31(1)(b) create three separate offences (R v Galvin (No 2) [1961] VR 740).
  12. For each of these offences there are two requirements:
    1. The person assaulted, resisted or obstructed must be an emergency worker, youth justice custodial worker or custodial officer, or a person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer; and
    2. The accused must know or be reckless as to the fact that the person is, or is assisting, an emergency worker, youth justice custodial worker or custodial officer (R v Galvin(No 1) [1961] VR 733; see also R v Reynhoudt (1962) 107 CLR 381).

    Emergency workers, youth justice custodial workers and custodial officers

  13. Under Crimes Act 1958 s31, “emergency worker,” "youth justice custodial worker" and "custodial officer" have the same meaning as given in Sentencing Act 1991 s10AA. That provision contains the following definitions:

    Custodial officer means -

    (a) a Governor, prison officer, escort officer within the meaning of the Corrections Act 1986; or

    (b) a police custody officer within the meaning of the Victoria Police Act 2013; or

    (c) a person authorised under section 9A(1) of the Corrections Act 1986 to exercise a function or power of a Governor, a prison officer or an escort officer under that Act; or

    (d) a person authorised under section 9A(1A) or (1B) of the Corrections Act 1986 to exercise a function or power referred to in that subsection;

    Emergency worker means -

    (a) a police officer or protective services officer within the meaning of the Victoria Police Act 2013; or

    (b) an operational staff member within the meaning of the Ambulance Services Act 1986; or

    (c) a person employed or engaged to provide, or support the provision of, emergency treatment to patients in a hospital; or

    (d) a person employed by the Metropolitan Fire and Emergency Services Board established under the Metropolitan Fire Brigades Act 1958 or a member of a fire or emergency service unit established under that Act; or

    (e) an officer or employee of the Country Fire Authority under the Country Fire Authority Act 1958; or

    (f) an officer or member of a brigade under the Country Fire Authority Act 1958, whether a part-time officer or member, a permanent officer or member or a volunteer officer or member within the meaning of that Act; or

    (g) a casual fire-fighter within the meaning of Part V of the Country Fire Authority Act 1958; or

    (h) a volunteer auxiliary worker appointed under section 17A of the Country Fire Authority Act 1958; or

    (i) a person employed in the Department of Environment and Primary Industries with emergency response duties; or

    (j) a registered member or probationary member within the meaning of the Victoria State Emergency Service Act 2005 or an employee in the Victoria State Emergency Service; or

    (k) a volunteer emergency worker within the meaning of the Emergency Management Act 1986; or

    (l) any other person or body—

    (i) required or permitted under the terms of their employment by, or contract for services with, the Crown or a government agency to respond (within the meaning of the Emergency Management Act 2013) to an emergency (within the meaning of that Act); or

    (ii) engaged by the Crown or a government agency to provide services or perform work in relation to a particular emergency;

    Youth justice custodial worker means a person-

    (a) who is employed or engaged by the Secretary to the Department of Justice and Regulation in a remand centre, a youth residential centre or a youth justice centre; and

    (b) whose duties include duties in relation to detainees in the custody of the Secretary.

    "On duty"

  14. Under s31(1)(b)(i), it is only an offence to assault, resist or obstruct an emergency worker, youth justice custodial worker or custodial officer if they are “on duty”.
  15. Section 31(2A) states that the phrases “emergency worker on duty,” "youth justice custodial worker on duty" and "custodial officer on duty" have the same meaning as in section 10AA of the Sentencing Act 1991. Subsections (9) and (10) of that provision state:

    (9) For the purposes of this section an emergency worker is on duty if—

    (a) in the case of a police officer or protective services officer within the meaning of the Victoria Police Act 2013, the officer is performing any duty or exercising any power as such an officer; or

    (b) in the case of an operational staff member within the meaning of the Ambulance Services Act 1986, the staff member is providing, or attempting to provide, care or treatment to a patient; or

    (c) in the case of a person employed or engaged to provide, or support the provision of, emergency treatment to patients in a hospital, the person is providing, or supporting the provision of, or attempting to provide or support the provision of, such treatment; or

    (d) in any other case, the person is performing any duty or exercising any power in response to an emergency within the meaning of the Emergency Management Act 2013.

    (10) For the purposes of this section a custodial officer is on duty if-

    (a) in the case of a Governor, prison officer or escort officer within the meaning of the Corrections Act 1986, the Governor or officer is exercising a function or power as a Governor, prison officer or escort officer (as the case may be); or

    (b) in the case of a police custody officer within the meaning of the Victoria Police Act 2013, the officer is exercising a function or power as a police custody officer; or

    (c) in the case of a person authorised under section 9A(1) of the Corrections Act 1986 to exercise a function or power of a Governor, a prison officer or an escort officer under that Act, the person is exercising a function or power specified in the instrument of authorisation; or

    (d) in the case of a person authorised under section 9A(1A) or (1B) of the Corrections Act 1986, the person is exercising a function or power specified in the instrument of authorisation.

    (11) For the purpose of this section, a youth justice custodial worker is on duty at any time when he or she is performing a function or exercising a power as a youth justice custodial worker.

  16. Prior to amendments introduced on 2 November 2014 in the Sentencing Amendment (Emergency Workers) Act 2014, the equivalent offence applied to a police officer or protective services officer “in the due execution of duty”.
  17. Given the definitions of the phrases “emergency worker on duty,” "youth justice custodial worker on duty" and "custodial officer on duty" in Sentencing Act 1991 s10AA(9) - (11), it is likely that principles developed in relation to “execution of duty” continue to apply, and may have been broadened on reflect the wider meaning of the phrase “on duty”. In relation to emergency workers, youth justice custodial workers and custodial officers other than police or protective services officers, the court should seek submissions on the operation of section 10AA(9) in the circumstances of the case.
  18. Authorities on the phrase “execution of duty” stated that it should be given a broad operation, to protect the performance of all police duties (R v K (DPP’s Reference 1993 (ACT)) (1993) 71 A Crim R 115).
  19. According to the Federal Court (in relation to the Federal Police Act 1979 (Cth)), a member of the police force is acting in due execution of their duty:

    from the moment [the member of the police force] embarks upon a lawful task connected with his [or her] functions as a police officer, and continues to act in the execution of that duty for as long as he [or she] is engaged in pursuing the task and until it is completed, providing that he [or she] does not in the course of the task do anything outside the ambit of his [or her] duty so as to cease to be acting therein (R v K (DPP’s Reference 1993 (ACT)) (1993) 71 A Crim R 115).

  20. The accused did not need to have known that the person was acting in due execution of duty (cf. knowing they were a member of the police force or person acting in aid of a member of the police force) (R v De Simone [2008] VSCA 216).
  21. Where a member of the police force conducts a search of a person for drugs because they are merely "curious" to see whether or not the accused has any drugs, such a search is illegal and the police officer cannot be said to be acting in the execution of their duty (Nguyen v Elliott 6/2/1995 SC Vic).
  22. Members of the police force who trespass or use excessive force, or who unlawfully detain a person, are acting in excess of their authority and so are not acting in the execution of their duty (Davis v Lisle [1936] 2 KB 434; R v Galvin (No 1) [1961] VR 733; Collins v Wilcock [1984] 1 WLR 1172).
  23. However, members of the police force have an implied licence to enter the path or driveway to a house in the absence of any obstruction or notice indicating that such licence has been revoked (Halliday v Neville (1984) 155 CLR 1).
  24. A licence to enter a property may be revoked. If it is, and the member of the police force stays, they will be acting unlawfully and not in the execution of their duty. However, they need to be given time to leave the premises (Robson v Hallett [1967] 2 QB 939).
  25. Members of the police force are permitted to tap a person on the shoulder or put a hand on a person’s sleeve to get their attention (Donnelly v Jackman [1970] 1 WLR 562; Collins v Wilcock [1984] 1 WLR 1172).
  26. Given that the definition of when a police officer or protective services officer is “on duty” requires that the person is “performing any duty or exercising any power as such an officer”, it is likely that the principles described above will continue to apply so that a police or protective services officer is not “on duty” when acting beyond his or her authority.

    Obstructing an emergency worker, youth justice custodial worker or custodial officer

  27. For an accused to have obstructed an emergency worker, youth justice custodial worker or custodial officer on duty, the accused must have:
  28. It does not matter whether the accused person’s actions were "aimed at" or "hostile" towards the emergency worker, youth justice custodial worker or custodial officer. If the accused prevented the emergency worker, youth justice custodial worker or custodial officer from carrying out their duty, or made it more difficult for them to do so, and the accused intended that the conduct should have that effect then it will be obstruction. The motive of the accused is only relevant to any lawful excuse that might be available (Lewis v Cox [1985] 1 QB 509).
  29. While obstructing an emergency worker, youth justice custodial worker or custodial officer may involve assaulting them, or threatening to assault them, it need not (Lewis v Cox [1985] 1 QB 509; Goddard v Collins [1984] VR 919).
  30. Actions which have been held to be obstruction include:
  31. The law in relation to obstruction draws a distinction between actions and omissions. In general, the offence only applies to actions that obstruct the emergency worker. However, this distinction must be applied in a common sense manner, as deliberately remaining at a place, contrary to a lawful direction by an emergency worker, can amount to obstructing (compare O’Hair v Killian (1971) 1 SASR 1; Towse v Bradley (1985) 60 ACTR 1).

    Knowledge or recklessness

  32. The mens rea for this offence is that the accused knew or was reckless as to whether the person was, or was assisting, an emergency worker, youth justice custodial worker or custodial officer (Crimes Act 1958 s31(1)(b), (ba)).
  33. Consistent with other offences in the Crimes Act 1958, recklessness means acting while aware that it is probable that the person was an emergency worker youth justice custodial worker or custodial officer (see Recklessness).
  34. In accordance with general principles of criminal responsibility, it is likely open to the defence to argue for exculpation on the basis of an honest and reasonable belief that the person was not, or was not assisting, an emergency worker, youth justice custodial worker or custodial officer “on duty” (see CTM v R (2007) 236 CLR 440).
  35. However, under earlier similar legislation, courts held that a mistaken belief that a police officer (or a person assisting them) did not have the powers they were exercising (e.g. a mistaken belief that a warrant did not give the right to immediate detention) did not provide a defence, as that was a mistake of law and not a mistake of fact (Towse v Bradley (1985) 60 ACTR 1).
  36. Where relevant, the court will therefore need to determine whether an asserted belief that the person was not “an emergency worker on duty” is a mistake of fact claim or a mistake of law claim.

    Assault with intent to resist or prevent arrest – s31(1)(c)

  37. Under s31(1)(c) it is an offence to assault or threaten to assault another person with intent to resist or prevent the lawful apprehension or detention of a person.
  38. A person can only be found guilty under this sub-section if the apprehension or detention was, or would have been, lawful (R v Wilson [1955] 1 All ER 744; R v Galvin (No 1) [1961] VR 733).
  39. If an attempted arrest is not lawful, or a police officer is not acting in the execution of their duty, a person is entitled to use reasonable force in self-defence. Such resistance is lawful, and will be a defence to a charge (Kenlin v Gardiner [1967] 2 QB 510; Bales v Parmeter (1935) 35 SR (NSW) 182; Nguyen v Elliott 6/2/1995 SC Vic; Zecevic v DPP (1987) 162 CLR 645).
  40. The accused can submit that he/she/they acted in self-defence due to an honest but mistaken belief that the arrest was unlawful (R v Thomas (1992) 65 A Crim R 269; R v Mark [1961] Crim LR 173; Kenlin v Gardiner [1967] 2 QB 510; Blackburn v Bowering [1994] 1 WLR 1324. But cf. R v Fennel [1971] 1 QB 428; De Moor v Davies [1999] VSC 416. For more information, see Common Law Self Defence).

Last updated: 5 June 2018

In This Section

7.4.9.1 - Charge: Assault with Intent to Commit an Indictable Offence (s31(1)(a))

7.4.9.2 - Checklist: Assault with Intent to Commit an Indictable Offence

7.4.9.3 - Charge: Assaulting an Emergency Worker, Youth Justice Custodial Worker or Custodial Officer on Duty (Police Officer) (s31(1)(b))

7.4.9.4 - Checklist: Assaulting a Member of the Police Force

7.4.9.5 - Charge: Resisting/Obstructing an Emergency Worker, Youth Justice Custodial Worker or Custodial Officer on Duty (Police Officer) (s31(1)(b))

7.4.9.6 - Checklist: Resisting a Member of the Police Force

7.4.9.7 - Checklist: Obstructing a Member of the Police Force

7.4.9.8 - Charge: Resisting Arrest (s31(1)(c))

7.4.9.9 - Checklist: Resisting Arrest

See Also

7.4 - Other Offences Against the Person

7.4.1 - Intentionally Causing Serious Injury in circumstances of gross violence

7.4.2 - Intentionally Causing Serious Injury

7.4.3 - Intentionally Causing Injury

7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

7.4.5 - Recklessly Causing Serious Injury

7.4.6 - Recklessly Causing Injury

7.4.7 - Negligently Causing Serious Injury

7.4.8 - Common Law Assault

7.4.10 - Threats to Kill

7.4.11 - Threats to Inflict Serious Injury

7.4.12 - Stalking (From 7/6/11)

7.4.13 - Stalking (10/12/03 - 6/6/11)

7.4.14 - Conduct Endangering Life

7.4.15 - Conduct Endangering Persons

7.4.16 - Extortion

7.4.17 - False Imprisonment

7.4.18 - Child Stealing

7.4.19 - Kidnapping (Common Law)

7.4.20 - Kidnapping (Statutory)

7.4.21 – Common law riot

7.4.22 - Affray