An allegation may arise in a wide range of circumstances, including during an arrest, police investigation, traffic stop, search, public incident, crowd-control situation or other interaction with NSW Police.

At Chidiac & Associates, we provide strategic Criminal Defence representation to individuals facing assault police charges throughout Sydney and New South Wales. We understand the serious consequences that can follow a conviction and the importance of carefully examining what occurred before, during and after the alleged incident.

We approach every matter with meticulous preparation, detailed analysis of the Prosecution evidence and a commitment to protecting our clients' rights throughout the investigation, Court proceedings and sentencing process.

What is Assault Police?

The principal offence of assaulting a police officer is contained in section 60 of the Crimes Act 1900 (NSW).

Section 60 creates a number of different offences depending upon the conduct alleged, whether the police officer suffered an injury and whether the alleged offence occurred during a public disorder.

The principal offences include:

• assaulting, throwing a missile at, stalking, harassing or intimidating a police officer where no actual bodily harm is occasioned;
• assaulting a police officer and occasioning actual bodily harm;
• wounding or causing grievous bodily harm to a police officer; and
• more serious versions of these offences where the conduct occurs during a public disorder.

The precise subsection under which a person has been charged is therefore extremely important.

Legislation — Section 60 Crimes Act 1900 (NSW)

Section 60 of the Crimes Act 1900 (NSW) is headed "Assault and other actions against police officers."

Under section 60(1), a person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while the officer is in the execution of their duty, where no actual bodily harm is occasioned, is liable to imprisonment for 5 years.

The legislation also provides for significantly higher penalties where actual bodily harm, wounding or grievous bodily harm is alleged.

Section 60(1) — Assault Police

Section 60(1) applies where a person:

• assaults a police officer;
• throws a missile at a police officer;
• stalks a police officer;
• harasses a police officer; or
• intimidates a police officer,

while the police officer is in the execution of their duty, and no actual bodily harm is occasioned to the officer.

The maximum penalty is:

5 years' imprisonment

The offence is therefore capable of carrying a significant custodial penalty even where the Prosecution does not allege that the police officer suffered actual bodily harm.

At Chidiac & Associates, we carefully examine the circumstances of the alleged assault, including the conduct of both the accused and the police officer immediately before and during the incident.

Section 60(1A) — Assault Police During a Public Disorder

A more serious maximum penalty applies where the conduct occurs during a public disorder.

Section 60(1A) applies to conduct including assaulting, throwing a missile at, stalking, harassing or intimidating a police officer while the officer is in the execution of their duty.

The maximum penalty is:

7 years' imprisonment

The legislation defines a public disorder for the purposes of the relevant provisions as a riot or other civil disturbance giving rise to a serious risk to public safety.

Whether the circumstances amount to a public disorder can therefore be an important issue in some cases.

Section 60(2) — Assault Police Occasioning Actual Bodily Harm

Section 60(2) creates a more serious offence where a person assaults a police officer while the officer is in the execution of their duty and the assault occasions actual bodily harm.

The maximum penalty is:

7 years' imprisonment

The allegation of actual bodily harm can significantly increase the seriousness of the charge.

The nature and extent of the alleged injury should therefore be carefully examined.

Section 60(2A) — Assault Police Occasioning Actual Bodily Harm During a Public Disorder

Where the assault occurs during a public disorder and occasions actual bodily harm, section 60(2A) applies.

The maximum penalty is:

9 years' imprisonment

The Prosecution must establish the relevant elements of the offence, including the circumstances concerning the alleged public disorder and the injury.

Section 60(3) — Wounding or Grievous Bodily Harm to Police

Section 60(3) deals with more serious allegations involving a police officer being wounded or suffering grievous bodily harm.

The legislation requires that:

• the police officer is wounded or suffers grievous bodily harm while in the execution of the officer's duty; and
• the accused is reckless as to causing actual bodily harm to the police officer or another person.

The maximum penalty is:

12 years' imprisonment

This is a substantially more serious offence than an ordinary assault police allegation and can expose an accused person to a significant term of imprisonment.

Section 60(3A) — Wounding or Grievous Bodily Harm During a Public Disorder

The maximum penalty increases further where the conduct occurs during a public disorder.

Section 60(3A) applies where a person, during a public disorder:

• wounds or causes grievous bodily harm to a police officer while the officer is in the execution of their duty; and
• is reckless as to causing actual bodily harm to the officer or another person.

The maximum penalty is:

14 years' imprisonment

This is the highest maximum penalty currently provided under section 60.

Assault Police Maximum Penalties

The maximum penalty depends upon the precise offence charged.

These are statutory maximum penalties. They do not mean that a person convicted of the offence will automatically receive the maximum sentence.

What is Actual Bodily Harm?

The distinction between an ordinary assault and an assault occasioning actual bodily harm can be important.

Actual bodily harm is a legal concept that requires more than a merely transient or trifling effect.

Depending upon the circumstances, the Prosecution may rely upon evidence such as:

• photographs of the alleged injury;
• medical records;
• hospital records;
• police body-worn video;
• witness evidence;
• statements from the police officer; and
• other forensic or medical evidence.

At Chidiac & Associates, we carefully examine the evidence concerning the alleged injury and whether the evidence establishes the requirements of the particular offence charged.

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What is Wounding?

Where a charge under section 60(3) or 60(3A) is alleged, the Prosecution may allege that the police officer was wounded.

Whether an injury amounts to a wound is a question of law and fact.

Medical evidence, photographs and evidence concerning how the injury occurred may therefore be particularly important.

The precise nature of the injury should not simply be assumed from the description contained in the police facts.

What is Grievous Bodily Harm?

Grievous bodily harm is a more serious category of injury.

Where the Prosecution alleges grievous bodily harm, the nature, severity and circumstances of the injury can become central issues in the case.

At Chidiac & Associates, we examine the medical and other evidence relied upon by the Prosecution and consider whether the alleged injury is properly supported by the evidence.

What Does "In the Execution of Their Duty" Mean?

A central issue in many assault police cases is whether the police officer was acting in the execution of the officer's duty.

This can be particularly relevant where an allegation arises during:

• an arrest;
• a police investigation;
• a search;
• a traffic stop;
• an attempt to detain a person;
• a public disorder;
• a domestic incident;
• a police attendance at a residence; or
• another interaction between police and the accused.

Section 60(4) also provides that an action may be treated as being carried out in relation to a police officer while in the execution of the officer's duty even where the officer is not actually on duty at the time, where the conduct is a consequence of or retaliation for actions previously undertaken by the officer in the execution of their duty, or because the person is a police officer.

The circumstances surrounding the alleged conduct should therefore be carefully examined.

Elements of Assault Police

The precise elements depend upon the subsection charged.

For an allegation under section 60(1), the Prosecution must establish the relevant conduct against a police officer while the officer was in the execution of their duty and that no actual bodily harm was occasioned.

For an allegation under section 60(2), the Prosecution must additionally establish that the assault occasioned actual bodily harm.

For section 60(3), the Prosecution case involves the more serious allegation that the officer was wounded or suffered grievous bodily harm and that the accused was reckless as to causing actual bodily harm.

The Prosecution bears the burden of proving the offence beyond reasonable doubt.

The Prosecution Must Prove Its Case

A person charged with assault police does not have to prove their innocence.

The Prosecution bears the burden of proving the relevant elements of the offence beyond reasonable doubt.

This may involve evidence concerning:

• the identity of the accused;
• the identity and status of the alleged victim;
• whether the officer was acting in the execution of their duty;
• what conduct is alleged to have occurred;
• whether the conduct constituted an assault;
• whether an injury occurred;
• the nature of any alleged injury;
• causation;
• recklessness, where required; and
• whether a public disorder existed, where relevant.

At Chidiac & Associates, we examine each of these issues when assessing the strength of a Prosecution case.

Defending Assault Police Charges

An assault police allegation should be investigated carefully.

Depending upon the circumstances, potential defence issues may include:

• the accused did not assault the police officer;
• the accused was incorrectly identified;
• the alleged conduct did not constitute an assault;
• the police officer was not acting in the execution of their duty;
• the alleged injury was not caused by the accused;
• the alleged injury does not amount to actual bodily harm;
• the alleged injury does not constitute a wound or grievous bodily harm;
• the accused was acting in self-defence;
• the Prosecution evidence is unreliable;
• police body-worn video contradicts the Prosecution account;
• CCTV contradicts the Prosecution account;
• independent witnesses provide a different account;
• there are inconsistencies between police statements;
• the accused did not have the required state of mind;
• the alleged public disorder did not exist; or
• the Prosecution cannot establish an essential element beyond reasonable doubt.

The availability of any particular defence depends upon the facts and evidence of the individual matter.

Self-Defence

Depending upon the circumstances, self-defence may be an important issue in an assault police Prosecution.

For example, the circumstances surrounding an arrest or the use of physical force by police may need to be carefully examined.

The availability and operation of self-defence depend upon the applicable law and the particular facts.

At Chidiac & Associates, we examine the circumstances leading up to the alleged assault rather than considering the alleged physical contact in isolation.

Police Body-Worn Camera Evidence

Police body-worn camera footage can be highly significant in assault police matters.

The footage may provide evidence concerning:

• what police said;
• what the accused said;
• whether warnings were given;
• whether force was used;
• the circumstances leading to the alleged assault;
• the alleged physical contact;
• the response of the police officer; and
• what occurred immediately afterwards.

Body-worn video may support either the Prosecution or the defence.

At Chidiac & Associates, we carefully review available footage and compare it with the allegations contained in police statements and the Prosecution facts.

CCTV and Other Video Evidence

CCTV footage may also be available from:

• businesses;
• residential buildings;
• public transport;
• roads;
• police stations;
• private residences;
• vehicles; and
• other locations.

Independent footage can be particularly valuable where it provides an account of the incident that differs from the evidence of the parties involved.

Witness Evidence

Independent witnesses may have observed the incident.

Witness evidence should be examined carefully, including:

• what the witness actually observed;
• the position of the witness;
• lighting and visibility;
• the duration of the incident;
• whether the witness knew the accused;
• what the witness initially told police;
• whether their account has changed; and
• whether the account is consistent with CCTV or body-worn video.

Inconsistencies may be relevant when assessing the reliability of the Prosecution case.

Circumstances of the Arrest

A significant number of assault police allegations arise during an attempted arrest or while a person is being restrained.

The circumstances immediately preceding the alleged assault may therefore be important.

Our lawyers may examine:

• why police approached the accused;
• what instructions were given;
• whether the accused understood those instructions;
• whether police attempted to restrain the accused;
• what force was used by police;
• whether the accused resisted;
• what occurred immediately before the alleged assault; and
• whether the alleged assault occurred during a struggle.

The entire sequence of events may be relevant to determining what actually occurred.

Assault Police and Resisting Police

Assault police should not be confused with the separate offence of hindering or resisting police.

Section 60(1AA) provides that a person who hinders or resists, or incites another person to hinder or resist, a police officer in the execution of the officer's duty commits an offence.

The maximum penalty is:

12 months' imprisonment or 20 penalty units, or both

The precise charge laid by police is therefore important.

A person who has been told they are being charged with "assault police" should obtain advice about the exact statutory provision appearing on the charge.

Assault Police and Actual Bodily Harm

Where an allegation involves injury to a police officer, the distinction between the various levels of harm can substantially affect the charge.

The current section 60 framework provides:

No actual bodily harm

Maximum penalty: 5 years

Actual bodily harm

Maximum penalty: 7 years

Wounding or grievous bodily harm

Maximum penalty: 12 years

The penalties increase further where the relevant conduct occurs during a public disorder.

This makes the medical evidence and precise nature of the alleged injury particularly important.

Sentencing for Assault Police

A conviction for assault police does not mean that the maximum penalty will automatically be imposed.

The sentencing Court considers the circumstances of the particular offence and offender.

Depending upon the circumstances, sentencing considerations may include:

• the objective seriousness of the offending;
• the nature of the assault;
• the duration of the incident;
• the degree of force used;
• whether a weapon or object was involved;
• the circumstances in which the incident occurred;
• the nature and extent of any injury;
• whether the offence occurred during a public disorder;
• the offender's criminal history;
• any previous convictions for violence;
• whether the offender pleaded guilty;
• the timing of the plea;
• the offender's personal circumstances;
• prospects of rehabilitation;
• remorse;
• treatment undertaken;
• employment;
• family circumstances; and
• other relevant sentencing considerations.

At Chidiac & Associates, we prepare sentencing submissions addressing the matters relevant to the individual client and the particular offence.

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Standard Non-Parole Periods

Certain offences under section 60 are listed in the standard non-parole period provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW).

For section 60(2), the standard non-parole period is 3 years.

For section 60(3), the standard non-parole period is 5 years.

A standard non-parole period is not an automatic sentence or mandatory minimum sentence. It is a reference point used by the sentencing Court in accordance with the applicable sentencing legislation.

The sentencing outcome depends upon the individual circumstances of the offence and offender.

Local Court and District Court

The Court in which an assault police matter is dealt with can depend upon the particular subsection charged and the way in which the matter proceeds.

Some section 60 offences are capable of being dealt with summarily in the Local Court, while more serious matters may proceed on indictment.

For example, section 60(2) and section 60(3) appear in the standard non-parole period provisions, reflecting the seriousness of those offences.

The appropriate jurisdiction and procedural pathway should be considered carefully once the precise charge has been identified.

At Chidiac & Associates, we advise clients about the applicable Court process and the options available in their particular matter.

What Happens If You Are Convicted?

A conviction for assault police can have consequences extending beyond the immediate sentence.

Depending upon the circumstances, consequences may include:

• imprisonment;
• a criminal conviction;
• a criminal record;
• employment difficulties;
• professional licensing consequences;
• difficulties obtaining certain security clearances;
• travel and visa consequences;
• financial consequences; and
• long-term reputational consequences.

Where the alleged conduct is particularly serious, the consequences can be significant.

However, every matter must be considered on its own facts.

How Chidiac & Associates Can Help

At Chidiac & Associates, we provide comprehensive Criminal Defence representation for clients facing assault police allegations throughout Sydney and New South Wales.

We can assist with:

• reviewing the exact charge;
• obtaining and analysing the Prosecution brief;
• examining police statements;
• reviewing police body-worn camera footage;
• obtaining and reviewing CCTV;
• identifying and assessing independent witnesses;
• examining medical and injury evidence;
• investigating the circumstances of the arrest;
• considering self-defence and other potential defences;
• identifying inconsistencies in the Prosecution case;
• negotiating with the Prosecution where appropriate;
• representing clients in Local Court proceedings;
• preparing matters for trial;
• representing clients in the District Court where appropriate;
• preparing sentencing submissions; and
• advising on appeals where appropriate.

Our approach is built on detailed preparation, strategic advice and strong representation at every stage of the proceedings.

Don't Assume That a Police Allegation Means You Will Be Convicted

Being charged with assault police does not mean that you will be convicted.

The Prosecution bears the burden of proving the relevant offence beyond reasonable doubt.

The evidence should be carefully examined before decisions are made about whether to plead guilty, defend the charge, negotiate with the Prosecution or take another course.

At Chidiac & Associates, we assess the allegations, the available evidence and the circumstances surrounding the incident before advising clients about their options.

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