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Chapter 36: Assault, Resist and Wilfully Obstruct Police

Table Of Contents  

[36.0] Introduction 

This chapter will examine the offence of 'Assault, Resist & Wilfully Obstruct', as provided for by section 247(b) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Police Act 1954 (UK), section 51(3).

[36.1] Offence 

Section 247(b) of the Penal Code (Ch. 26) states: 

'Any person who – 

(a)                assaults, resists or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer, 

is guilty of a misdemeanour, and shall be liable to imprisonment for two years.'

[36.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did [assault, resist or wilfully obstruct] a [police officer namely (specify the name and rank of police officer) in the due execution of (his/her) duty or person acting in aid of a police officer namely (specify the name and rank of officer) in the due execution of (his/her) duty].'

[36.3] Elements 

A. Defendant 

B. Place 

C. Date 

D.        [i] Assault; 

[ii] Resist; or 

[iii] Wilfully Obstruct 

E.         [i] Police Officer Acting In The Due Execution Of His/Her Duty; or 

[ii] Person Acting In Aid Of A Police Officer In The Due Execution Of His/Her Duty

[36.4] Assault 

The element 'Assault' is examined commencing on page 564.

[36.5] Resist 

Section 18 of the Penal Code (Ch. 26) states: 

'Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.' (emphasis added) 

The term 'Resist' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

However, the 'natural and ordinary' meaning of that term in the context of this section would include opposing by force some course of action which the police officer resisted is attempting to pursue, see R v Galvin (No. 2) [1961] VR 740. 

In Collins v Murray; Ex parte Murray [1989] 1 QdR 614 the case involved two police officers who each had hold of the defendant, one officer on either side, attempting to effect the defendant's arrest for another offence. The defendant pulled away, screaming and yelling. The defendant was charged with two counts of resisting police in the execution of their duty. 

The court held that one bodily movement of twisting and struggling constituted resisting each of the two police officers in the execution of their duty; the one bodily movement on the part of the defendant gave rise to two charges. However, Williams J, with whom the other members of the court concurred, stated at page 618: 

'In my view […] the second charge is constituted by the "gist or gravemen" of the former and it would be an harassment of the accused to charge him with two several offences. […] The magistrate should have recorded a conviction on one of those charges and forever stayed the other; […] The penalty with respect to the conviction recorded should reflect the overall criminality of the conduct constituting the offence.'

[36.6] Wilfully Obstruct 

The term 'Wilfully Obstruct' is not defined in either the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Rice v Connolly [1966] 2 AllER 649 [[1966] 3 WLR 17; [1966] 2 QB 414] Lord Parker CJ stated at page 651 what the prosecution had to prove was: 

·                     That there was an obstructing of a police officer; 

·                     That the defendant obstructing did so wilfully; and 

·                     That the police officer was at that time acting in the execution of his/her duty. 

In Lewis v Cox (1985) 80 CrAppR 1 Webster J stated at page 6: 

'Lord Parker CJ […] in RICE v CONNOLLY [1966] 2 QB 414, 419 [[1966] 2 AllER 649] said that "wilful" in the context of this section [, referring to section 51(3) of the Police Act 1954 (UK),] "not only in my judgment means 'intentional' but something which is done without lawful excuse"; and Lord Parker's explanation of "wilfully obstructs" as being something which makes it more difficult for the police to carry out their duties was taken by him from the judgment of Lord Goddard CJ in HINCHCLIFFE v SHELDON [1955] 1 WLR 1207, 1210; [1955] 3 AllER 406, 408 where Lord Goddard said: "Obstructing, for the present purpose, means making it more difficult for the police to carry out their duties."' 

Kerr LJ stated at page 8: 

'I agree with Webster J's analysis of the authorities. The actus reus is the doing of an act which has the effect of making it impossible or more difficult for members of the police to carry out their duty. The word "wilfully" clearly imports an additional requirement of mens rea. The act must not only have been done deliberately, but with the knowledge and intention that it will have this obstructive effect. But in the absence of a lawful excuse, the defendant's purpose or reason for doing the act is irrelevant, whether this be directly hostile to, or "aimed at", the police, or whether he has some other purpose or reason.' (emphasis added) [words in brackets added] 

In Willmott v Atack [1977] QB 498; [1976] 3 AllER 794; (1976) 63 CrAppR 207 the court held that it was not sufficient for the prosecution to prove that the defendant had deliberately done an act which had resulted in the obstruction of a police officer; what also had to be shown was that he/she had done the act with the intention of obstructing the officer in the sense of making it more difficult to carry out his/her duty. 

In appropriate circumstances, the defendant must however be under a legal obligation to comply with the direction of the police officer concerned, see Ingleton v Dibble [1972] 1 QB 480; [1972] 1 AllER 275. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444. 

See also: Moore v Green [1983] 1 AllER 663; Hinchcliffe v Sheldon [1955] 3 AllER 1207; [1955] 1 WLR 1207; Hills v Ellis (1983) 76 CrAppR 217 & Carmichael v Mac Gowan [1967] WAR 11.

[36.7] Execution Of Duty 

The term 'Execution Of Duty' is not defined in either the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Donnelly v Jackman [1970] 1 WLR 562; [1970] 1 AllER 987; (1970) 54 CrAppR 229 the case involved a defendant who was tapped on the shoulder by a police officer who was investigating an offence. The court held that although the police officer only wanted to talk to the defendant that police officer was acting in the execution of his duty. 

In Malayta (1996) 87 ACrimR 492 Pincus JA, as a member of the Court of Appeal, stated at page 495: 

'For a police officer to act in accordance with a search warrant would ordinarily be "in the performance of the officer's duties". However, the High Court in Corbett (1932) 47 CLR 317 held, in a case concerning a charge of obstructing police in the execution of their duty, that (at 327 per Gavan Duffy CJ, Rich and Dixon JJ): 

"… when the alleged duty arises from a warrant, the charge cannot be sustained unless the warrant did operate in law as an authority to the officer, and, unless when he was resisted, he was in the course of executing that authority according to law … It is not enough that the officer was acting bona fide in obedience to a warrant, which, although bad, appeared to be good."' (emphasis added) 

The prosecution does not have to prove the defendant knew that the police officer concerned was acting in the execution of his/her duty, see R v Reynhoudt (1962) 107 CLR 381; [1962] ALR 483. 

Refer to the sections which examine: 

·                     'Institution Of Proceedings' commencing on page 110; and 

·                     'Common Law Powers Of Arrest' commencing on page 250. 

See also: Robson v Hallett [1967] 2 QB 939; [1967] 2 AllER 407; (1967) 51 CrAppR 307; [1967] 3 WLR 28; Davis v Lisle [1936] 2 KB 434; [1936] 2 AllER 213; Henderson v O'Connell [1937] VLR 171; [1937] ALR 218; R v Timmins [1913] QWN 44; (1913) 7 QJPR 61; R v McDowall [1910] QWN 43; (1910) 4 QJPR 141; Re K (1993) 46 FCR 336; Innes v Weate (1984) 12 ACrimR 45 & McLaughlin v Mesics (1966) 116 CLR 340; (1966) 40 ALJR 204. 

If there is uncertainty as to whether the prosecution can prove 'beyond reasonable doubt' that the police officer was acting in the execution of his/her duty then a charge of 'Common Assault' should be considered. 

That offence is examined commencing on page 562.

[36.8] Effect Of Dismissal 

In Veivers v Roberts, Ex parte Veivers [1980] QdR 226 the case involved a defendant who was charged with being found in an enclosed yard without lawful excuse, and also with resisting a police officer in the execution of his duty. 

The magistrate dismissed the first charge on a matter of law because the defendant was on private premises, and dismissed the second charge on the grounds that the honest belief purported to be held by the police officer making the arrest for the offence, could not be entertained on reasonable grounds because such belief would have been held by him on an erroneous view of the law. 

The Court held: 

A person arrested for the offence of being found in an enclosed yard without lawful excuse but found not guilty of that offence may be convicted of the offence of resisting the arresting officer in the execution of his/her duty, if at the time of the arrest the police officer had reasonable grounds for believing that the offence for which the defendant was arrested had been committed. 

See also: Normandale v Rankine (1972) 4 SASR 205 & R v McDowall [1910] QWN 43; (1910) 4 QJPR 141.

[36.10] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Assault, Resist & Wilfully Obstruct Police' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of those offences are examined commencing on page 918.

[36.11] Related Offences 

Refer also to the other 'Assaults Punishable With Two Years Imprisonment', as provided for by section 247 of the Penal Code (Ch. 26). Subsection (a) of that section is examined commencing on page 590.