Criminal Law
8 April 2013
Assaults
Section 31 Crimes Act 1958,– (5 years max penalty)
Section 31 of the Crimes Act 1958 creates five distinct offences. These are:
 assaulting or threatening to assault a person with intent to commit an indictable offence – s.
31(1)(a)
 assaulting or threatening to assault a member of the police force (or person acting in aid of a
member of the police force) in the due execution of duty – s. 31(1)(b)
 resisting a member of the police force (or person acting in aid of a member of the police force)
in the due execution of duty – s. 31(1)(b)
 obstructing a member of the police force (or person acting in aid of a member of the police
force) in the due execution of duty – s. 31(1)(b)
 assaulting or threatening to assault a person with intent to resist or prevent arrest – s. 31(1)(c)
How assault is defined
Assault is the direct or indirect application of force to the body of, or to the clothing or equipment
worn by, a person (s. 31(2)).
Application of force includes the application of heat, light, electric current or any other form of
energy, as well as the application of matter in solid, liquid or gaseous form (s. 31(3)).
Unlike common law assault, an assault under s. 31(2) must be done with intent to inflict, or being
reckless as to the infliction of, bodily injury, pain, discomfort, damage, insult or deprivation of liberty.
The assault must also result in the infliction of one of these consequences, although not necessarily
the one intended or foreseen.
1. Assault a person with intent to commit an indictable offence
Elements to be proved
The following five elements must be proved for this offence to be established:
 the accused applied force/threatened to apply force to the body of the complainant (includes
any type of physical contact, including using instruments, light, heat etc. and does not matter
how much force is applied, a touch is enough)
 the accused applied force/threatened to apply force to the body of the victim with an intention
to injure, inflict pain, cause discomfort, cause damage, cause insult, or deprive the
complainant of liberty (the accused must have intended one of these consequences)
 the actions of the accused resulted in the complainant being injured, in pain etc. The accused
need not have intended to cause the particular outcome for this element to be met
 the accused must have acted with the intention to commit an indictable offence (whether or
not the intending act involved an indictable offence is a matter of law), and
 the accused did not have a lawful excuse (for example, self defence).
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/sacstat> Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute
for thorough, in-depth legal research.
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Criminal Law
Offence Snapshot - Assaults
2. Assaulting, resisting or intentionally obstructing police in the execution of
their duty
The words ‘assault’, ‘resist’ and ‘intentionally obstruct’ in s. 31(1)(b) create three separate offences.
Each of these offences have the following elements:
 the person assaulted, resisted or obstructed must be a member of the police force, or a
person aiding a member of the police force, and
 the accused must know that the person is a member of the police force, or a person aiding a
member of the police force (R v Galvin(No 1) [1961] VR 733; see also R v Reynhoudt (1962)
107 CLR 381).
If the accused is mistaken and believes that the person is not a member of the police force or a
person aiding a member of the police force, the elements of the offence will not be satisfied.
However, a mistaken belief that the police officer (or person aiding them) does not have the powers
they are exercising (e.g. a mistaken belief that a warrant does not give the right to immediate
detention) does not provide a defence. This is a mistake of law and not of fact. (Towse v Bradley
(1985) 60 ACTR 1).
Assaulting police -elements to be proved
The following seven elements must be proved for this offence to be established:
 the accused applied force to the body of the complainant (includes any type of physical
contact, including using instruments, light, heat etc. and does not matter how much force is
applied, a touch is enough)
 the accused applied force to the body of the victim with an intention to injure, inflict pain,
cause discomfort, cause damage, cause insult, or deprive the complainant of liberty (the
accused must have intended one of these consequences)
 the accused’s actions resulted in the complainant being injured, in pain etc. (not necessary
that the accused intended to cause the particular outcome, element is met even if the result of
the accused’s actions differs from what was intended)
 the complainant was a member of the police force
 the complainant was acting in due execution of their duty (the complainant must have been
acting lawfully, in connection with their functions as a police officer – not acting outside the
scope of their duties)
 the accused knew that the complainant was a member of the police force (the prosecution
must prove that at the time the accused applied force to the complainant’s body, they knew
that the complainant was a member of the police force), and
 the application of force was without lawful excuse.
Resisting/obstructing police -elements to be proved
The following six elements must be proved for this offence to be established:
 the complainant was a member of the police force
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/sacstat> Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute
for thorough, in-depth legal research.
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Criminal Law
Offence Snapshot - Assaults
 the complainant was acting in the due execution of duty (the prosecution must prove that at
the time the accused applied force to the complainant’s body, they knew that the complainant
was a member of the police force)
 the accused resisted/obstructed the complainant in the execution of their duty (resist is given
its ordinary English meaning – it is up to the jury to determine whether the accused’s actions
amounted to resistance in light of all the circumstances in the case. To ‘obstruct’ is acting a
way that prevented the complainant from carrying out her/his functions as a police officer, or
made it more difficult for her or him to do so)
 the accused knew that the complainant was a member of the police force (the prosecution
must prove that at the time the accused applied force to the complainant’s body, they knew
that the complainant was a member of the police force)
 the accused intended to resist/obstruct the complainant in the due execution of their duty (the
accused either deliberately meant to resist the complainant, or must have known and intended
that her/his actions would prevent the complainant from carrying out her/his duties or made it
more difficult for her/him to do so), and
 the accused did not have a lawful excuse.
3. Assaulting or threatening to assault a person with intent to resist or prevent
arrest
Elements to be proved
The following five elements must be proved for this offence to be established:
 the accused applied force to the body of the complainant (includes any type of physical
contact, including using instruments, light, heat etc and does not matter how much force is
applied, a slight touch is enough)
 the accused applied force to the body of the victim with an intention to injure, inflict pain,
cause discomfort, cause damage, cause insult, or deprive the complainant of liberty (the
accused must have intended one of these consequences)
 the accused’s actions resulted in the complainant being injured, in pain etc. (it is not
necessary that the accused intended to cause the particular outcome, the element is met even
if the result of the accused’s actions differs from what was intended)
 the accused’s actions were done with an intention to resist or prevent their lawful arrest (arrest
must be lawful. The prosecution must prove that the accused acted with an intention to resist
their lawful arrest. ‘Resist’ is given its ordinary English meaning – it is up to the jury to
determine whether the accused’s actions amounted to resistance in light of all the
circumstances in the case), and
 the application of force was without lawful excuse.
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/sacstat> Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute
for thorough, in-depth legal research.
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Criminal Law
Offence Snapshot - Assaults
Sentencing Snapshot
The table below, produced by the Sentencing Advisory Council, represents sentences imposed for
aggravated burglary in the Magistrates’ Court between 2009 and 2011.
Sentence type
Assault, threaten, resist or
intentionally obstruct police
Imprisonment
16.9%
Partially Suspended Sentence
3.6%
Wholly Suspended Sentence
11.8%
Youth Justice Centre Order
1.0%
Intensive Correction Order
5.1%
Community-based Order
22.3%
Fine
26.6%
ADU/Discharge/Dismissal
12.8%
For more information about this offence, go to the Judicial College of Victoria, Victorian Criminal
Charge Book.
Information in this snapshot is taken from Judicial College of Victoria, Victorian Criminal Charge Book
<http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm> and Sentencing Advisory Council, SACStat
<http://www.sentencingcouncil.vic.gov.au/sacstat> Note: this snapshot is produced as an aid to VLA duty lawyers and is not a substitute
for thorough, in-depth legal research.
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