Threatening Injury to Prevent Arrest

– section 30 of the Crimes Act 1958
Police Officer Looking at a Person Being ArrestedThis charge is often laid in situations where tempers are getting very frayed and a person is being arrested. A person then starts shouting out threats with intent to prevent or hinder the lawful apprehension or detention of themselves or of any other person.

A person may be charged with this offence if they threaten injury to another person or property to prevent or hinder lawful arrest, or threaten injury to another person or property to prevent or hinder a police officer or a protective services officer (PSO) from investigating in a lawful manner any act or circumstance which reasonably calls for investigation by the police officer or PSO.

Examples of Threatening Injury to Prevent Arrest
  • The accused threatens to stab police officers if they attempt to arrest them.
  • The accused threatens to break another person’s leg if a police officer tries to arrest them.
  • The accused threatens to break a car windscreen to prevent another person from calling the police so that the accused can be arrested.
  • The accused threatens to push a PSO into the path of an oncoming train if the PSO investigates a suspicious package the PSO reasonably believes contains illicit drugs.
Questions in cases like this
  • Did the accused make a threat against another person or property?
  • Did the accused make a threat to injure the other person or property?
  • Did the accused intend that their threat would prevent or hinder the lawful arrest of themselves or another person, or the lawful investigation of an act or circumstance that calls for investigation by a police officer or PSO?
What are some of the possible defences to Threatening Injury to Prevent Arrest?

Most defences to this charge turn on some element of the offence not being made out. These defences include:

  • The accused did not threaten any person or property;
  • The accused did not threaten to injure any person or property;
  • The accused did not intend for that their threat would prevent or hinder the lawful arrest of themselves or another person, or the lawful investigation of an act or circumstance that calls for investigation.

Duress is another defence that may apply to this charge in certain circumstances.1

Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

Magistrates' CourtThe maximum penalty for threatening injury to prevent arrest is level 6 imprisonment (5 years).2

Threatening injury to prevent arrest is an indictable offence triable summarily and is ordinarily heard in the Magistrates’ Court.3

What is the legal definition of Threatening Injury to Prevent Arrest?

A person who threatens injury to any other person or to any property with intent—

  1. to prevent or hinder the lawful apprehension or detention of himself or herself or any other person; or
  2. to prevent or hinder a police officer or a protective services officer from investigating in a lawful manner any act or circumstance which reasonably calls for investigation by a police officer or a protective services officer—

is guilty of an indictable offence.

Penalty: Level 6 imprisonment (5 years maximum).

Legislation

The relevant legislative provision for this offence is section 30 of Crimes Act 1958 (Vic) (the Act).

Elements of the offence

To prove that an accused committed a charge of Threatening Injury to Prevent Arrest, the prosecution must establish the following elements beyond reasonable doubt:

  1. The accused threatened injury to any other person or to any property; and
  2. The accused had the intent to prevent or hinder the lawful apprehension or detention of himself or herself or any other person; or
  3. The accused had the intent to prevent or hinder a police officer or a protective services officer from investigating in a lawful manner any act or circumstance which reasonably calls for investigation by a police officer or a protective services officer.

The offence will be made out if either element 1 and element 2; or element 1 and element 3 are satisfied beyond reasonable doubt.

Element 1: the accused threatened injury to any other person or to any property
The prosecution must first prove that the accused threatened injury to any other person or property.

It is not enough for an accused to make a general threat for this element of the offence to be made out. The accused must threaten ‘injury’. Injury in relation to a person is non-exhaustively defined in the Act as ‘unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function’ and ‘psychological harm’.4

Injury to property is not defined in the Act. Injuring property is comparable to damaging property. Damaging property has been broadly defined in Victorian case law to mean ‘permanent or temporary reduction of functionality, utility or value’.5

The accused must threaten some action that would result in an injury to person or property for the first element of the offence to be satisfied.

"Can they prove that you threatened to inflict an injury?"

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Element 2: the accused had the intent to prevent or hinder the lawful apprehension or detention of himself or herself or any other person
The second element of this offence requires the prosecution to prove that accused intend that their threat to inflict an injury on person or property will prevent or hinder the lawful apprehension or detention of themselves or any other person.

The accused must have wished that their threat would bring about the prevention or hindrance of the lawful apprehension of themselves or any other person. It is not enough that the accused is reckless as to whether or not their threat may have this result. They must have intended this to be so.

The apprehension or detention the accused intends to prevent or hinder must be ‘lawful’. There are strict requirements for when an arrest will be lawful.6 This element of the offence will only apply where any apprehension or detention is lawful.

Element 3: The accused had the intent to prevent or hinder a police officer or a protective services officer from investigating in a lawful manner any act or circumstance which reasonably calls for investigation by a police officer or a protective services officer
The third element of this offence requires the prosecution to prove that an accused intended to prevent or hinder a police officer or PSO for investigating in a lawful manner any act or circumstance that reasonably calls for investigation.

The same mental element of ‘intention’ that applies for element 2 of this offence applies for element 3.

To satisfy element 3, the accused must be threatening a ‘police officer or PSO’ as defined in the Victoria Police Act 2013 (Vic).7 The police officer or PSO must be investigating an act or circumstance in a ‘lawful manner’ for this element of the offence to apply. The act or circumstance must also ‘reasonably’ call for investigation.

Other important resources

 



[1] Crimes Act 1958 (Vic) s 322O.
[2] Crimes Act 1958 (Vic) s 30.
[3] Criminal Procedure Act 2009 (Vic) s 28.
[4] Crimes Act 1958 (Vic) s 15.
[5] R v Previsic [2008] VSCA 112.
[6] Crimes Act 1958 (Vic) ss 457-463B.
[7] Victoria Police Act 2013 (Vic), Part 3.