If you are charged with resisting the police or disobeying a police direction, you have legal options.
Charges for resisting police or failing to comply with a police direction are among the most commonly contested criminal charges in NSW. They frequently arise in charged situations such as protests, street incidents, and police stops, and they often come down to a single legal question: was the police officer actually acting lawfully at the time?
If the answer is no, the charge may not stand at all. This factsheet explains the relevant offences, what prosecutors must prove, the defences available, how your right to protest is protected under NSW law, and what to do if you have been charged.
The following is a practical guide on what to do if you are resisting police and move-on direction charges, your legal options, and what to do next.
The Charges Explained
Two offences arise most frequently in this area of law, particularly in the context of protests and public order incidents.
Assault, obstruct or hinder a police officer in the execution of duty
This offence is found in Section 60(1AA) of the Crimes Act 1900 (NSW). This provision covers conduct directed at a police officer carrying out their lawful duties, including assaulting, throwing things at, or otherwise obstructing or hindering an officer. The exact penalties depend on the specific sub-section and circumstances; confirm current Local Court and District Court maxima with your lawyer, as they vary by aggravating factors.
Refuse or fail to comply with a police direction
This offence is found in Sections 197 and 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). It applies where a person fails to comply with a direction given by police, most commonly a move-on direction issued during a protest, public gathering, or police investigation.
The maximum penalty is a fine of 2 penalty units (currently $220). Despite the relatively low financial penalty, a conviction is recorded and appears on your criminal record, which can affect employment, professional licences, and international travel.
A key element of both offences
A key element of both offences is that the officer must have been acting lawfully. If police exceeded their powers or failed to follow the required procedure, the charges may not be made out.
What Prosecutors Must Prove
Understanding what the prosecution is required to establish helps identify where a defence is available.
For the Section 60(1AA) offence
The prosecution must prove beyond a reasonable doubt:
- The accused engaged in conduct that assaulted, obstructed, or hindered the officer
- The officer was a police officer
- The officer was acting in the lawful execution of their duty at the time
- The accused knew, or was reckless as to whether, the person was a police officer
The lawful execution of duty is frequently contested. If an officer was carrying out an unlawful arrest, issuing an unlawful direction, or otherwise exceeding their powers, they were not acting in the lawful execution of their duty, and the charge falls away.
For failing to comply with a direction (Sections 197 and 199 LEPRA)
The prosecution must prove beyond reasonable doubt:
- A direction was given by a police officer
- The direction was lawfully given under LEPRA
- The accused failed to comply with the direction
- The accused had no reasonable excuse for failing to comply
The lawfulness of the direction is again the central issue. Police can only issue move-on directions in specific circumstances defined by LEPRA. If those circumstances did not exist, the direction was not lawful, and there is no offence in failing to follow it.
Police Move-On Powers Under LEPRA
Police move-on powers are set out in Part 14 of LEPRA. Understanding when police can and cannot lawfully issue a direction is central to defending these charges.
When police can issue a move-on direction
Under Section 197 of LEPRA, police may direct a person to move on if they reasonably suspect the person:
- Is obstructing another person or traffic
- Is harassing or intimidating another person
- Is likely to cause fear to another person
- Is buying or selling drugs, or about to do so
- Has been involved in or is about to be involved in a fight or other violent conduct
Merely being present at a protest, asking police questions, or refusing to answer questions does not, by itself, give police grounds to issue a move-on direction. Police cannot use move-on powers simply to disperse a lawful gathering.
What the police must tell you?
Under Section 201 of LEPRA, before issuing a direction or exercising a power, police must generally tell you:
- That they are a police officer (if not in uniform)
- The reason for the direction or exercise of power
Failure to follow these procedural requirements can mean the direction is not properly given, which in turn affects whether a failure-to-comply charge can succeed.
Protections for protest activity
The right to protest is recognised under both common law and the NSW Charter of Rights. While there is no absolute right to protest in NSW, police must exercise their powers proportionately and cannot use move-on directions as a blanket tool to suppress lawful protest activity. A direction issued primarily to prevent or disrupt a lawful protest may not be lawful.
Your Right to Remain Silent
What you must tell police
Under Section 11 of LEPRA, if police ask for your name and address and you are in a public place, you are generally required to provide them if police have a lawful reason to ask. Failure to do so can itself be an offence.
What you are not required to say
Beyond providing your name and address in the circumstances above, you are not required to answer police questions or make any statement. You have the right to say nothing further until you have spoken to a lawyer. Exercising this right is not an offence and cannot be used as evidence of guilt.
Asking police to explain their powers
Questioning the legal basis for a direction or arrest is a legitimate exercise of your rights, not an act of resistance. Asking a police officer why they are issuing a direction, or whether they have lawful grounds to do so, does not by itself constitute hindering or obstructing police.
Defences to These Charges
Several defences are available to charges of resisting police and failing to comply with a direction. The right defence depends on the specific facts of the case.
Unlawful police conduct
If the officer was not acting in the lawful execution of their duty at the relevant time, there is no offence. This is the most powerful and commonly raised defence in these cases. An unlawful arrest, an unlawful direction, or a failure by police to follow required procedure can all support this defence.
The direction was not lawfully given
If the circumstances required to issue a move-on direction under LEPRA did not exist, the direction was not lawful and there is no obligation to comply with it. Police cannot lawfully direct you to move on simply because they want to disperse a crowd or because they find your presence inconvenient.
Reasonable excuse
A person who fails to comply with a police direction may have a reasonable excuse for doing so. Medical conditions, disability, or other physical limitations that prevented compliance may be relevant depending on the circumstances.
Conduct did not reach the legal threshold
Not all uncooperative conduct amounts to hindering or resisting. The conduct must be sufficiently serious to constitute an obstruction or hindrance. Passively refusing to answer questions, asking police to explain their powers, walking slowly when asked to move, or seeking clarification about the legal basis for a direction before complying may not reach the required threshold.
Mistaken identity
In protest situations involving large crowds, police sometimes charge the wrong person. Body-worn camera footage, CCTV, and witness evidence can be critical in establishing that the accused was not the person who engaged in the alleged conduct.
How These Charges Are Dealt With in Court
Which court
Both offences are dealt with in the Local Court. The Section 60(1AA) charge can also be dealt with on indictment in the District Court in more serious cases, but the vast majority of matters arising from protests and public order incidents are finalised in the Local Court.
Reviewing police evidence
Body-worn camera footage has become central to the defence of these charges. Officers are required to wear body-worn cameras, and footage is often the clearest record of what was actually said and done. Your lawyer can obtain this footage through the prosecution brief and use it to assess whether the direction was lawfully given and whether the alleged conduct occurred as described.
Negotiations with the prosecution
In many cases, a careful review of the police brief reveals that the prosecution cannot establish one or more elements of the offence. Where this is the case, charges can often be negotiated to be withdrawn or downgraded before a hearing. Police prosecutors regularly agree to withdraw charges where the brief does not support a conviction, particularly where body-worn camera footage contradicts the police narrative.
Possible outcomes
If the matter proceeds to a hearing and you are found not guilty, no conviction is recorded. If you plead guilty or are found guilty, the court may impose:
- Section 10 dismissal or conditional release order (no conviction recorded)
- Conditional Release Order with conviction
- Community Correction Order
- Fine
- For the Section 60 offence in more serious cases, a custodial sentence is possible, though unlikely for a first offender with no prior record
Why These Cases Turn on the Lawfulness of Police Conduct
Charges of resisting police and failing to comply with a direction are unusual in criminal law because the lawfulness of the police officer’s own conduct is a central element of the offence. This means the person charged does not need to prove they did nothing wrong in any general sense, they only need to raise a genuine issue about whether the officer was acting lawfully.
This puts a significant burden on the prosecution. They must not only prove that the accused did what is alleged, but also that police had the legal authority to act in the way they did. In protest situations in particular, this requirement is frequently not met.
A lawyer who understands the limits of police powers under LEPRA and the Crimes Act is essential to running this kind of defence effectively.
Why Choose O’Brien Criminal & Civil Solicitors?
O’Brien Criminal & Civil Solicitors regularly represents clients charged with resisting police, failing to comply with directions, and related public order offences in NSW. We have particular experience in charges arising from protests and political demonstrations, where the lawfulness of police conduct is frequently in issue.
We act for clients charged with:
- Assault, obstruct or hinder a police officer under Section 60 of the Crimes Act 1900 (NSW)
- Failing to comply with a move-on direction under LEPRA
- Unlawful assembly and riot charges
- Public order offences arising from protests and demonstrations
- Related charges including larceny, goods in custody, and assault arising from the same incidents
We understand that people charged with these offences often did nothing wrong and were exercising their lawful rights when they were arrested. We take these cases seriously and work hard to hold police to the legal standards they are required to meet.
We can defend you for any criminal charges related to resisting the police and then, if suitable, our civil solicitors can file a civil claim for unlawful police conduct.
What to Do If You Have Been Charged
If you have been charged with resisting police or failing to comply with a direction in NSW, take the following steps as soon as possible:
- Do not make any further statements to police. You have the right to remain silent, and anything you say can be used against you.
- Write down everything you remember about the incident as soon as possible, what was said by police, what direction was given, what you said and did, and who was present.
- Note the names or badge numbers of the officers involved if you have them, and the names of any witnesses.
- Preserve any evidence you have: photos, video, messages, or any other records from the incident.
- Check your Court Attendance Notice for the date, time, and location of your first court appearance.
- Contact a criminal defence lawyer before your first court date. Entering a plea without advice on the lawfulness of the police conduct is a significant risk in these cases.
Need A Lawyer For Resisting The Police Charges?
If you have been charged with resisting police, failing to comply with a direction, or any related offence in NSW, contact O’Brien Criminal & Civil Solicitors for a confidential consultation.
Phone: (02) 9261 4281 or fill out the form below.
