What does it mean to ‘obstruct’ police?
It can be seen from the above section that “obstruct” is defined to include “hinder, resist and attempt to obstruct”. However, this is not an exhaustive definition. It is often said that a police officer is “obstructed” by any action which makes his or her substantially more difficult of performance.
“…in the performance of the officer’s duties”
It was said in an often quoted Australian court case that:-
“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 long as he is engaged in pursuing the task and until it is completed, provided he does not do anything outside the ambit of his duty so as to cease to be acting therein”.
It is important to note that the passage above refers to a police officer embarking upon a “lawful” task, and not doing anything outside the ambit of his (or her) duty. In other words, if a police officer is doing something which is not in the performance of his or her lawful duties, or if the police officer is acting unlawfully, you cannot be convicted of obstructing the police officer.
The classic example is of a police officer is effecting an unlawful arrest. If the police officer has sought to arrest you in circumstances in which he or she has no lawful right to do so, you cannot be convicted of obstructing him or her by attempting to resist that arrest (such as by putting up a struggle).
A case which illustrates this point is Police v. Bubbles  QMC 6. Briefly stated, the facts of that case were that Mr Bubbles and his wife were walking through Brunswick Street Mall, Fortitude Valley on a Sunday night, when they walked past a group of 5 police officers. The police officers were laughing. Due to Mr Bubbles’ unusual appearance, Mr Bubbles believed that the police were laughing at him. As he walked past the police, Mr Bubbles muttered the words “f*@king wankers”. One of the police officers immediately told Mr Bubbles to stop, put his hand on Mr Bubbles’ arm, and told him that he was under arrest.
Mr Bubbles attempted to pull his arm away from the police officer. He was then taken back to the Police Beat, where he grabbed onto a door frame as he was being led further into the building.
Mr Bubbles was charged with committing a public nuisance offence (for using the words “f*@king wankers”), and with obstructing a police officer in the performance of his duties for his actions in resisting his arrest.
Mr Bubbles pleaded “not guilty” to both charges.
(The Magistrate hearing the case was first required to determine whether or not Mr Bubbles was guilty of committing a public nuisance offence by using the words “f*@king wankers”. Her Honour ruled that, not only were those words not, in the circumstances, intrinsically offensive, but they did not, and were not likely to, interfere with the peaceful passage through, or enjoyment of, a public place by a member of the public. As such, Mr Bubbles was found “not guilty” of his charge of committing a public nuisance offence).
As to the charge of obstructing a police officer in the performance of the officer’s duties, Her Honour was required to consider the actions of the police officer in arresting Mr Bubbles (as opposed to the police officer taking the less drastic step of issuing him with a Notice to Appear in court). Her Honour examined the provisions of section 198 of the Police Powers and Responsibilities Act 2000, which set out the circumstances in which a police officer may lawfully arrest a person without a warrant, and concluded that none of those circumstances existed.
Because Her Honour concluded that the police officer had no lawful power to arrest Mr Bubbles, it thereby followed that the purported arrest was unlawful. The arrest being held to be unlawful, it also followed that the police officer was not acting “in the performance of the officer’s duties” for the purpose of section 790 of the Act. As the police officer was not acting in the performance of the officer’s duties in attempting to effect the arrest, Mr Bubbles was found not guilty of his obstruct charge..
Running Away from Police
It is my experience that many police officers are of the belief that simply because they ask you to stop, or stay still, you are required to do so. I have lost count of the amount of times I have seen people charged with the offence of obstructing police simply because a police officer has asked a person to stop, and the person has ignored that request and walked (or even run) away.
The simple fact is, that unless you are lawfully arrested, you are generally not required to stay still just because a police officer asks, or tells, you to.
If you are lawfully arrested, this is a different scenario entirely. But simply because a police officer yells out “Stop! Police!!”, this does not mean you are required to do so. It also means that you cannot be convicted of obstructing a police officer by the mere fact that you fail to comply with the demand.
Circumstances of Aggravation
“…within licensed premises, or in the vicinity of licensed premises…”
If the offence is committed within, or in the vicinity of, licensed premises, the maximum penalty doubles from 6 months imprisonment to 12 months imprisonment. Also, the maximum fine increases from 40 penalty units to 60 penalty units.
Section 108B of the Penalties and Sentences Act 1992
Subsection (2A) of section 790 states that:-
“The Penalties and Sentences Act 1992, section 108B also states a circumstance of aggravation for an offence against this section”.
The offence of obstructing police under section 790 is a “prescribed offence” for the purposes of section 108B of the Penalties and Sentences Act 1992.
Section 108B states that if a person is convicted of a “prescribed offence” with the circumstance of aggravation that the offence was “committed in a public place whilst the person was adversely affected by an intoxicating substance”, then the court must make a community service order as all or part of the punishment for the offence.
The number of hours of community service required to be performed is at the discretion of the Magistrate. That being said, section 103(2)(a) of the Penalties and Sentences Act states that a community service order must be for at least 40 hours, but no more than 240 hours.
(Community service is to be performed at the place, and at the times, directed by an authorised corrective services officer. Unless otherwise ordered by the court, the community service hours must be performed, in full, within 12 months of the making of the order).
“Public place” is defined as meaning:-
(a) a place, or part of a place, that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or
(b) a place, or part of a place, the occupier of which allows, whether or not on payment of money, members of the public to enter.
From the definition above, it can be seen that even a pub or nightclub falls within the scope of “public place”.
“Adversely affected” is not defined. Whether or not a person who has consumed alcohol or ingested drugs is, in fact, “adversely affected” will depend very much on the person’s outward displays of intoxication. However, if a person’s breath alcohol concentration is 0.15% or more, section 365C of the Queensland Criminal Code conclusively deems the person to be “adversely affected”
Defending a charge
As can be seen from what I have set out above, there may be many bases upon which an obstruct charge can be contested. It may be that, upon exposing the circumstances to close scrutiny:-
• The conduct complained of does not constitute an “obstruct”;
• The police officer was not acting “in the performance of the officer’s duties”, or had exceeded the lawful scope of his or her duties;
• The offence was not committed in, or in the vicinity of, licensed premises (if that is what alleged); and/or
• The offence was not committed in a public place whilst you were adversely affected by alcohol (if that is what is alleged.
I strongly recommend that you should seek expert legal representation if you are charged with obstructing a police officer in the performance of the officer’s duty. Anderson Fredericks Turner’s expert criminal lawyers have represented dozens of people charged with obstructing police. We have the knowledge and experience to be able to advise you of your prospects of successfully defending an obstruct charge.
By identifying problems or deficiencies in the police case against you, we can seek to have your charge downgraded or even discontinued. Alternatively, if the case against you is a strong one and you wish to plead guilty, our experienced solicitor advocates can provide you with the quality representation you require to ensure the best result possible once you have your day in court.
What if the Police are Lying?
Of course, it may well be the case that you wish to plead “not guilty” to an obstruct charge simply because you have not done what the police claim you have done. Regrettably, my experience in the field of criminal defence has revealed that many charges of “obstruct” are, quite simply, fabrications. What is fortunate, however, is that with the increase in the availability of CCTV, mobile phones and body worn camera footage, it is becoming easier than it was in years gone by to demonstrate a false police case.
If you are charged with obstructing police, contact Anderson Fredericks Turner. We can help.