10 / 1 / 2023

When Police Act Outside their Duty

In some circumstances a police officer’s failure to act within the execution of their duty can amount to a complete legal defence to a charge. There are a number of specific offences against police officers where this may apply. Under s 60 of the Crimes Act 1900 (NSW), for example, it is unlawful to hinder or resist, a police officer in the execution of the officer’s duty or assaults, harasses or intimidates a police officer while in the execution of the officer’s duty etc.

A key element of these offences, which also acts as a limitation and protection for the community, is that the crime must occur whilst the police is ‘in the execution of the officer’s duty’. Those words are critical as if a police officer outside of their duty, then that crime has not been committed.

What is the execution of the officer’s duty?

According to the full bench of the Federal court in R v K 118 ALR 596 at 601:

“… a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as along [sic] as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein”

In Director of Public Prosecutions v Gribble (2004) 151 A Crim R 256, Barr J his Honour accepted that duty went:

“Beyond the prevention and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act”.

A police’s duty has been interpreted broadly but is not limitless. It does not protect them from unlawful acts. If a police officer is exceeding their duty, resistance to them is not an assault.
There are some actions that take an officer outside of their duty, for example a police officer will not be acting in the execution of their duty if they make an arrest without a warrant or without lawful purpose. If a police officer uses excessive force, they are not acting in the execution of their duty. A trespassing police officer may not be exercising in the exercise of his duty. If police conduct illegal searches or in general act outside the scope of a warrant, they have also exceeded their duty.

If police act outside of their duty, you are entitled to use force to resist. For example, in the case of Henderson v O’Connell, police conducted an illegal search. This case notes that:
A man who is searched or to search whom an attempt is made without legal authority, is entitled to resist and to use all reasonable force for that purpose… The charge against him also fails for the same reason, namely, that the search or attempted search was not in the execution of the duty of the constable.

Other cases also show that that once the conduct of an officer is unlawful, “the level of physical response offered by an accused is irrelevant to a charge involving the “execution of duty” or “performance of duty”. The level of force used may remain relevant to a separate charge of common assault or some other offence of violence that does not involve as an element having a police officer acting in the execution of their duty.

If you have been charged with an offence involving Police Officers, it is prudent to seek legal advice as the prosecution may be unable to prove all necessary elements of the offence.

Rebecca Kriesler, Senior Lawyer

1 Bales v Parmeter and Another (1935) 35 SR NSW 182
2 Woodley v  Boyd [2001] NSWCA 35 at [37]
3 Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
4 Henderson v O’Connell [1937] VLR 171
5 Henderson v O’Connell [1937] VLR 171 at 177-178.
6 Coleman v Power [2004] HCA 39 at 124.