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

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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 assaulting a person with the intention of resisting or preventing their arrest. [1] To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:

One - the accused applied force to the body [2] of the complainant. [3]

Two - the accused applied force to the complainant’s body with an intention to [insert one or more of the following as relevant: injure the complainant, inflict pain, cause discomfort, cause damage, cause insult or deprive the complainant of liberty]. [4]

Three - the accused’s actions resulted in the complainant being [insert one or more of the following as relevant: injured, caused pain, caused discomfort, caused damage, insulted or deprived of liberty].

Four - the accused’s actions were done with an intention to resist their lawful arrest.

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

I will now explain each of these elements in detail.

Application of force

The first element relates to what the accused did. The accused must have applied force to the body of the complainant.

It does not matter how the force was applied. It could involve any type of physical contact, [if relevant, add: such as kicking or punching, pushing or hitting with an object].

[If relevant, add: The application of force could also involve an application of heat, light or electric current to the body of the complainant, or the application of any substance, including liquids or gases.]

It also does not matter how much force was applied. Even a slight touch is enough for this element to be satisfied.

In this case, the prosecution argued that NOA applied force to NOC when [insert evidence]. The defence responded [insert evidence].

Intention or recklessness

The second element relates to the accused’s state of mind. The prosecution must prove that the accused applied force to the complainant’s body with an intention to [insert one or more of the following as relevant: injure the complainant, inflict pain, cause discomfort, cause damage, cause insult or deprive the complainant of liberty]. That is, when NOA touched NOC, [he/she] intended or meant to cause one of these consequences.

Result of the accused’s acts

The third element relates to the results of the accused’s actions. The prosecution must prove that the accused’s actions [insert one or more of the following as relevant: injured the complainant, inflicted pain, caused discomfort, caused damage, caused insult or deprived the complainant of liberty].

It is not necessary that the accused intended to cause the particular outcome that resulted from their actions. This element may still be met even if the result of their actions differs from what was intended. What is necessary is that the complainant was [insert one or more of the following as relevant: injured, caused pain, caused discomfort, damaged, insulted or deprived of liberty].

Intention to resist lawful arrest or detention

The fourth element also relates to the accused’s state of mind. The prosecution must prove that the accused acted with an intention to resist their lawful arrest. "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 this case, the prosecution argued that NOA resisted NOC when [he/she] [insert evidence]. The defence responded [insert evidence].

Lawful excuse

The fifth 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 NOA applied force to NOC’s body; and

Two – that NOA applied that force with the intention to [insert one or more of the following as relevant: injure NOC, inflict pain, cause discomfort, cause damage, cause insult or deprive NOC of liberty]; and

Three – that NOA’s actions resulted in NOC being [insert one or more of the following as relevant: injured, caused pain, caused discomfort, damaged, insulted or deprived of liberty]; and

Four – that NOA acted with an intention to resist [his/her] lawful arrest; and

Five – 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] Section 31(1)(c) can apply to resisting or preventing any lawful apprehension or detention of a person, not just the arrest of the accused. In relevant cases, this charge will need to be amended accordingly.

[2] Section 31(2) of the Crimes Act 1958 provides that the application of force can also be to clothes or equipment worn by the complainant. In cases involving such an application of force, the wording of the charge will need to be modified accordingly.

[3] It is also possible for this element to be satisfied if the accused threatened to apply force to the body of the complainant. In relevant cases, the charge will need to be amended accordingly.

[4] It is also possible for this element to be satisfied by recklessness. In relevant cases the charge will need to be amended accordingly (see Recklessness for assistance).

 

Last updated: 3 December 2012

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

7.4.9.5 - 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

7.4.9.9 - Checklist: Resisting Arrest