Our criminal defence team successfully defended a client charged with Police Assault Charges. In particular, they were charged with two counts of assaulting police following a welfare check at her home. After a defended hearing at a Sydney Local Court, the Magistrate found that police were not acting in the lawful execution of their duty at the time of the alleged incident. As a result, both charges dismissed for our client.
Case Summary
Emergency services attended the client’s home after a welfare check request was made by a former partner who believed she might be attempting to harm herself. Police and ambulance officers arrived and found the client distressed and crying.
Police attempted to restrain her and later alleged that during this process she bit two officers, leading to two charges of assault police. The defence successfully argued that police did not have lawful authority to use force at the time, meaning an essential element of the offence could not be proven.
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Detailed Overview: Welfare Check and Police Attendance
Police and ambulance officers attended the client’s residence after a call was made by her former partner requesting a welfare check. The caller claimed the client had locked herself in the bathroom and might be attempting to harm herself with a syringe or sharp object.
At the time of the call:
- The former partner was not present at the address
- An Apprehended Violence Order (AVO) was already in place for the client’s protection
- The incident had been classified by NSW Ambulance as a mental health matter
When police arrived, they encountered the client inside the home in an emotionally distressed state, crying and refusing to engage with questioning.
Police Restraint and Allegations
During the interaction, three police officers attempted to physically restrain the client and place her under a mental health detention.
The prosecution alleged that during this restraint the client bit two police officers, resulting in two counts of assault police.
However, for the offence of assault police to be proven, the prosecution must show that the officers were acting in the execution of their duty, meaning they were lawfully exercising their powers.
The Key Legal Issue
The defence focused on whether police had the legal authority to restrain the client at the moment force was first used.
Police relied on section 20 of the Mental Health Act 2007 (NSW), which allows a person to be detained for a mental health assessment. Under this law, police may assist in detaining someone only if requested by an authorised person, such as a paramedic or medical practitioner.
The defence argued that these legal requirements had not been followed.
Defence Argument for Police Assault Charges
Our defence team submitted that:
- Police physically restrained the client before any lawful detention under the Mental Health Act had occurred
- No authorised person had requested police assistance to detain the client
- The mental health scheduling process had not yet taken place
- The client was not informed she was being detained or why before force was used
In other words, the statutory power police relied upon had not yet been activated at the time of the alleged biting.
Court Findings
After hearing the evidence, the Magistrate accepted our defence submissions.
The court found that:
- Police attempted to justify their actions using powers under the Mental Health Act and Police Act 1990
- However, no request had been made for police assistance under section 20 prior to the restraint
- Police restrained the client first, before the mental health detention process had been lawfully carried out
Her Honour concluded that the statutory power police relied upon was not available at the time force was used.
The court also found that the Police Act did not give police a separate power where the Mental Health Act specifically regulates the situation.
Because of this, the officers were not acting in the execution of their duty when the alleged assaults occurred.
Outcome of Police Assault Charges Case
Since the prosecution could not prove that police were acting lawfully at the time, a key element of the offence of assault police was missing.
The Magistrate therefore dismissed both charges.
This result meant the client avoided criminal convictions and the serious penalties associated with assaulting police.
Need Help With Assault Police Charges? Sydney Lawyers for Police Assault Charges
Allegations involving police can be complex, especially where issues arise about whether officers were acting within their legal powers. Early legal advice can make a significant difference to the outcome of your Police Assault Charges case.
If you or someone you know has been charged with assault police arising from a welfare check or mental health-related attendance, early legal advice is essential.
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*We always change details in our case studies to protect client confidentiality.
