What is the penalty for resisting arrest?
When can I be charged with resisting arrest?
It is an offence to resist arrest. Police can charge you with resisting arrest even if they decide not to charge you with the offence you were originally being arrested for.
In the Supreme Court of Victoria case of R v Galvin (no. 2) 1961, it was held that “the word resist carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue”.
What is the penalty for resisting arrest charges?
Positive action must be taken to resist arrest, for example, struggling against the officer or running away. The offence of resisting arrest is outlined in section 526C of the Crimes Act 1900 (NSW). It is punishable by a maximum term of imprisonment of 12 months.
In order for the prosecution to make out the charge of resisting arrest, they must prove the use of force by the alleged offender. Running away prior to any physical contact with the police, for example, is insufficient to prove resist.
Generally, resisting arrest as your first offence will not result in a criminal conviction. You would likely be a good candidate for a section 10 and avoid a criminal conviction.
What are the defences to resist arrest charges?
There are a number of defences available for this charge including self-defence and illegal arrest.
Very often, those who are charged with resisting arrest are victims of over-zealous police officers who over-react in heated situations. The charge of resisting arrest can very often be challenged by arguing against the legality of the arrest in the first place.
An example:
Police stop and interrogate an intoxicated man who is loitering out the front of a club. They approach him, and question him on what he is doing and where he is going. He innocently explains that he is merely waiting in front of the club waiting for a friend. He has done nothing wrong. Police, still insistent on grilling the man on what he was doing there, continue to question him. He continues to explain that he is waiting for a friend. Police are not happy with the answers that the man is giving, and for an unreasonable suspicion that he is there with the intention of causing some kind of trouble. The make the decision to arrest him, and in doing so, get into a struggle with the man when they are attempting to restrain him. He resists the arrest.
Is he guilty of the offence?
The short answer is No.
It could be argued that the arrest was an unlawful one. The arrest was made with little or no foundation at all. The charged man would have an arguable case to have the charge of resisting arrest thrown out.
If you are arrested by the police, even if you think it is not justified, it is best not to struggle or resist the police as this charge will be laid.
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