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

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This charge is designed for cases where the complainant is a police officer. The charge must be adapted where the complainant is a different type of emergency worker, youth justice custodial worker or custodial officer. See Statutory Assault for guidance on the types of workers covered by the offence.

This charge must also be adapted if the complainant is a person who was lawfully assisting an emergency worker, youth justice custodial worker or custodial officer.

I must now direct you about the crime of assault. Under the law, there are a number of different types of assault that a person can be charged with. In this case the accused has been charged with [resisting/obstructing] a police officer in the due execution of duty. Although it may seem strange, according to the law this is a type of assault. To prove this crime, the prosecution must prove the following 6 elements beyond reasonable doubt:

One - the complainant was a police officer. [1]

Two - the complainant was "on duty". [2]

Three - the accused knew that the complainant was a police officer, or knew that the complainant was probably a police officer.

Four - the accused [resisted/obstructed] the complainant.

Five - the accused intended to [resist/obstruct] the complainant.

Six - the accused’s actions were without lawful excuse.

I will now explain each of these elements in detail.

Police officer

The first element that the prosecution must prove is that the complainant was a police officer. In this case [insert relevant evidence].

On Duty

The second element that the prosecution must prove is that the complainant was on duty at the time the accused [resisted/obstructed] them. This means that they must have been acting lawfully, performing the duties or exercising the powers of a police officer.

[If there is an issue regarding whether the police officer was acting outside the scope of his or her duties, add suitable directions on the scope of duties. See Statutory Assault for guidance.]

In this case, the prosecution argued that [insert evidence]. The defence responded [insert evidence]. It is for you to determine whether NOC was actually performing [his/her] duties when NOA [insert evidence].

Knowledge

The third element relates to what the accused knew. The prosecution must prove that at the time NOA [resisted/obstructed] NOC, [he/she/they] knew that NOC was a police officer, or knew that the complainant was probably a police officer.

In this case, the prosecution argued that [insert evidence]. The defence responded [insert evidence].

Resist/Obstruct

The fourth element relates to what the accused did. The accused must have [resisted/obstructed] the complainant.

[In resistance cases add the following: "Resists" is an ordinary English word. It is up to you to determine whether NOA’s acts amounted to "resistance", in light of all of the circumstances in the case.]

[In obstruction cases add the following: To find that NOA obstructed NOC in the course of [his/her] duty, you must find that [he/she] acted in a way that prevented NOC from carrying out [his/her] functions as a police officer, or made it more difficult for [him/her] to do so.]

In this case, the prosecution argued that NOA [resisted/obstructed] NOC when [he/she] [insert evidence]. The defence responded [insert evidence].

Intention 

The fifth element relates to the accused’s state of mind. The prosecution must prove that the accused intentionally [obstructed/resisted] the complainant.

In resistance cases, add: That is, NOA deliberately meant to resist NOC.

In obstruction cases, add: That is, NOA must have known and intended that [his/her] actions would prevent NOC from carrying out [his/her] duties or make it more difficult for [him/her] to do so.

Lawful excuse

The sixth element that the prosecution must prove is that the accused’s actions were without lawful excuse.

If any lawful excuses, such as self-defence, are open on the evidence, add: In this case, the defence argued that [insert evidence of lawful excuse]. The prosecution argued [insert any counter arguments].

If no lawful excuses are open on the evidence, add: In this case, it has not been suggested that there was a lawful excuse for the accused’s alleged actions. The main issue[s] for you to determine are [refer to facts in issue].

Summary

To summarise, before you can find NOA guilty of assault the prosecution must prove to you beyond reasonable doubt:

One – that NOC was a police officer; and

Two – that NOC was "on duty"; and

Three – that NOA knew that NOC was a police officer or knew that NOC was probably a police officer; and

Four – that NOA [resisted/obstructed] NOC; and

Five – that NOA intended to [obstruct/resist] NOC; and

Six – that NOA acted without lawful excuse.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of assault.

 

Notes

[1] This element will also be satisfied if the accused resists or obstructs a person acting in aid of a police officer. In relevant cases, this element will need to be modified accordingly.

[2] Where the complainant is a person acting in aid of a police officer, this element will need to be amended to reflect that it is the police officer who must have been on duty.

Last updated: 5 June 2018

See Also

7.4.9 - Statutory Assault

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

7.4.9.6 - 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