Resisting Arrest or Hindering Police: What the Law Really Says

Charges of resisting arrest or hindering police arise more frequently than most people realise, and they arise in circumstances that are often genuinely ambiguous. High-pressure encounters with police, instinctive physical responses to sudden restraint, misunderstandings about what officers are lawfully entitled to do, and contested accounts of what actually happened all contribute to a category of charges where the facts on the ground matter enormously – and where an experienced criminal defence lawyer can make a real difference to the outcome.

At Essere – The Defenders, we have represented thousands of clients charged with criminal and traffic offences across Sydney and Parramatta over more than 27 years. Charges of resisting or hindering police appear regularly in our practice, and the legal landscape around them is more nuanced than many defendants – or indeed many people who are not lawyers – appreciate.

The Legal Framework: What NSW Law Actually Says

In New South Wales, the primary legislative basis for charges of resisting or hindering police is Section 58 of the Crimes Act 1900, which creates an offence of resisting or hindering a police officer in the execution of their duty, carrying a maximum penalty of 12 months imprisonment. More serious offences involving assault of a police officer are dealt with under different provisions and carry substantially higher maximum penalties.

The phrase ‘in the execution of their duty’ is not decorative legal language – it is a critical element of the offence that must be proven by the prosecution. A police officer who is acting outside the scope of their lawful authority – for example, making an arrest without the required statutory basis, conducting a search outside their lawful powers, or using force that is not authorised by law – may not be acting ‘in the execution of their duty’ within the meaning of Section 58. This creates a potentially significant area of legal contest that an experienced criminal lawyer can investigate and potentially exploit in a defendant’s favour.

What Conduct Can Constitute Resistance or Hindrance?

Courts in NSW have found a wide range of conduct capable of amounting to resistance or hindrance, depending on context. Physical pulling away from an officer who is applying restraint, pushing or striking an officer during an arrest, physically obstructing officers conducting a lawful search, and in some circumstances deliberate verbal interference with officers in the execution of specific duties have all been found to fall within the provision.

However – and this is important – not every physical reaction to police contact will meet the legal threshold for a conviction. The distinction between a deliberate act of resistance and an involuntary or reflexive response to sudden physical contact or pain is one that courts must carefully consider. The degree of force used by police, whether the officer’s conduct was itself lawful, the specific nature of the defendant’s response, and the overall context of the interaction are all factors that bear on whether the conduct crosses the legal threshold.

Was the Arrest Itself Lawful? A Critical Question

One of the most important – and most overlooked – defences to a charge of resisting arrest is that the arrest was not lawful in the first place. Under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), a police officer’s power of arrest is conditional. An officer must have reasonable grounds to believe that a person has committed, is committing, or is about to commit an offence, and must form that belief on a proper evidential basis before making an arrest.

If the prosecution cannot establish that the arresting officer had the required lawful basis for the arrest at the time it was made, then the officer was not acting ‘in the execution of their duty’ in making it. And if the officer was not lawfully arresting the defendant, the defendant’s resistance to that arrest may not constitute a criminal offence. This analysis requires a careful examination of the circumstances that existed at the moment of arrest – what the officer knew, what they had been told, and whether those grounds were sufficient to justify an arrest under the applicable statutory provisions.

Other Defences That May Be Available

Depending on the specific facts of your case, a number of other defences may be available. These include the defence of self-defence, available in limited circumstances where an officer’s use of force was itself unlawful and the defendant’s response was reasonable and proportionate to the force they faced. A defence of duress or sudden response to unexpected pain or physical contact may also be relevant in some circumstances. And in cases where the only evidence for the offence is the police officer’s account, a factual dispute about what actually occurred may be sufficient to raise a reasonable doubt – the fundamental standard the prosecution must overcome in a criminal trial.

The Importance of Acting Quickly

Evidence in cases involving police contact can deteriorate rapidly. CCTV footage from street cameras, nearby businesses, and police body-worn cameras has limited retention periods and is frequently overwritten if not preserved promptly. Witness recollections become less reliable and more susceptible to contamination over time. The earlier a defence lawyer is engaged, the better the opportunity to identify, request, and preserve evidence that may be critical to the defence.

If you have been charged with resisting arrest or hindering police in NSW, seek legal advice immediately – before your first court appearance, and ideally before making any statement to police beyond providing your identifying details. You have a right to silence, and exercising it is not an admission of guilt. The decision about what to say, and when, is best made with proper legal advice.

Contact Essere – The Defenders

With a 90% success rate across more than 5,000 represented cases, Essere – The Defenders is one of Sydney’s most experienced and effective criminal defence firms. Our team includes lawyers with decades of experience in criminal and traffic defence, including matters involving police conduct and use of force. We offer a 24/7 hotline for urgent matters including bail applications and police station attendance.

Call us any time on (02) 9283 3033. The sooner we know about your case, the better we can help.