Resisting Arrest in Australia: Resistance is futile and illegal

by Findlaw Team

It is an offence to resist arrest, as long as the arrest is legitimate. Get all the information you need to know of what can and can't be done against you in times of arrest, and what you can and can't do.

Resisting arrest is also referred to as resisting police. Criminal law varies from state to state, and it is recommended to always seek legal advice when you are not sure whether you have a legal obligation to do as the police asks or requires.

There must be an arrest to resist

Only a police officer can arrest you if they have:

  • Reasonable suspicion that you have committed an offence;
  • A warrant for your arrest issued by a court; or
  • Knowledge you have committed or are about to commit an offence.

The police officer should say you are under arrest and why. If you are unsure if you are under arrest, ask. Police possess other particular powers, which include bringing you to the police station for questioning, or conducting a blood test for drug or alcohol intoxication while driving.

Desist the resist(ance)

Active resistance is required for a charge of resisting arrest. To resist arrest, an arrest must have been made and the resistance happens once it is. Resisting arrest can include:

  • pulling away from the police officer trying to handcuff you
  • minor struggling
  • running from the police
  • verbally abusing police
  • violence

If police believe you have committed an offence, but you are innocent, resisting the arrest can still be an offence with which you can be charged even if no other charge is used against you later. At these times, it is always important to contact your lawyer.

Does resistance mean defence?

A police officer can use as much force as necessary and reasonable to arrest you. Reasonable force means using enough physical force to arrest you, and no more. If it is unreasonable, it will be deemed as assault, which is determined by a judge or a magistrate. Complaints can be made against police who use unreasonable force. Handcuffs are not an unusual measure when arresting someone.

Defending the resistance

Self-defence can be used against a charge of resisting arrest. The accused has had to act in self-defence to the actions of the arresting police officer – such as being caused pain when being handcuffed and they react accordingly.

The penalties for being found guilty of resisting arrest include heavy fines and potential imprisonment as well as a criminal record. Whether you are considering pleading guilty or not guilty to a resisting arrest charge, you should get advice immediately.

Of others and for others

It is offence to wilfully interfere in the arrest of another person, as you can be charged with resisting an arrest or wilfully obstructing a police officer in the exercises of duty.



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