1.

Dianne (D) was charged under section 34B of the Police Offences Act1 and under section
114 of the Criminal Code.2 This constitutes a parallel offence.

As per section 38(1) of the Acts Interpretation Act,3 D’s offence is a summary offence. In
looking in the AIA, section 364 specifies that the general principles of criminal
responsibility will apply where there is a parallel offence and that “all terms and
expressions used in relation to such offence shall have the same meaning and
construction as when similarly used in relation to such crime”. This is concurrently
supported by section 4(3) of the Code which provides that except provided in s 36 of the
AIA, “nothing contained in this Act or in the Code shall be construed to affect the
construction of any statute, or of any provision thereof, creating an offence punishable
summarily or referring or relating to summary proceedings.”

Thus, as both s 34B of the POA and s 114 of the Code mention the prohibition of the
resistance to public officers, the Code’s general principles will apply in this case rather
than the common law principles.

2. In order for P to prosecute D, P will have to prove the external and mental elements
beyond reasonable doubt.

External Elements: an application of force (need an assault).

Mental Elements: intention, voluntariness.

External Elements
The definition of ‘assault’ can be found under section 182(1) of the Code, as this is a
parallel offence, the Code’s definition may be referred to. “Assault” would mean to have
an intention to apply force “to the person of another, directly or indirectly.” As per the
case of Collins v Wilcock,5 the slightest force will be considered as a form of assault. An
application of force does not necessarily have to be applied on the body, the Court in the
case of Day6 discusses that a person making an attack to a person’s clothes is sufficient to
consider it as “an application of force” if the assault causes the person to feel pain or
apprehension in respect of his or her safety.

Mental Elements
As for the mental elements, it is important to look at section 13(1) of the Code which sets
out that “no person shall be criminally responsible for an act, unless it is voluntary and
1
1935 (Tas) s 34B (‘POA’).
2
1924 (Tas) s 114 (‘Code’).
3
1931 (Tas) s 38(1) (‘AIA’).
4
Ibid s 36.
5
[1984] 3 A11 ER 374.
6
[1845] 1 Cox 207.
 intentional.” P will have to prove that D had carried out the guilty act with a guilty mind
(mens rea).7 Note that there are three factors that may be possible to displace the
presumption of mens rea: wordings of the statute, subject matter of the offence and the
effect of strict liability on the enforcement of the offence. In looking at the relevant
section in which D has been charged under (s 34B), it would seem that it failed to
displace the presumption of mens rea.

P will need to prove that D had acted on her own free will where she had an intention to
“assault, resist, or wilfully obstruct a police officer in the execution of his duty.” The
term ‘wilfully’ would be considered as a word of doubtful import as there is a number of
other possible meanings. The case of Hodgson8 is relevant to the interpret this term. The
Court of Criminal Appeal defined ‘wilfully’ as “including either deliberate damage to
property or foresight of such harm”, however, it should be noted that this definition was
only based on the context in Hodgson. Cox and Cosgrove JJ in Hodgson9 had discussed
that ‘wilfully’ “has no fixed meaning at law, but varies in meaning depending upon its
context.” Thus, the term ‘wilfully’ will have to be assessed to determine a wilful conduct
by D.

3. D may use the defence of mistake of fact as she may have thought the police officer who
showed up might have been an unwanted/uninvited guest. This state of mind was brought
about by intoxication which may suggest that D’s actions were not voluntary.

As per Wood v Bench,10 section 34B of the POA is parallel to section 182 of the Code.
This means that section 17(2) of the Code would apply in this case. Section 17(2) states
that where there is evidence that the intoxication would “render the accused incapable of
forming the specific intent essential to constitute the offence with which he is charged”, it
would be taken into account along with other evidence “in order to determine whether or
not he had that intent.” Case law suggests that intoxication can only be used as a defence
in crimes of specific intent.11 This would mean that s 114 of the Code and s 34B of the
POA would need to be a crime of specific intent for D to use the defence of intoxication.

However, if it is found that there is no need to prove specific intent (or if found that s 34B
of the POA or s 114 of the Code is to be an aggravated assault having basic intent), the
defence of intoxication would fail for D.

7
He Kaw Teh (1985) 157 CLS 523.
8
[1985] Tas R 75.
9
Ibid [103].
10
Unreported Serial No 39/1985 [1].
11
Snow [1962] Tas SR 271 [282].
4. P will argue that the external elements would have been satisfied. The facts stated that the
police officer arrive at D’s premises to address the noise complaints made by D’s
neighbours, this shows that the police officers were indeed carrying out their duties. D
had also used abusive language towards the police officers and had knocked one of the
police officer’s hat from his head. P would argue that this would consider as a wilful
application of force towards the police officers, as a slight force on clothes would
consider as an application of force, during their execution of their duties. Additionally,
with D’s use of abusive language, P would argue that D had acted on a guilty mind.
D may argue in defence that her actions towards the police officers would not be
intentional as she may have been intoxicated involuntarily by “some sleazy creep” who
possibly “poured something into her drink from a flask he was holding”, as witnessed by
Wendy. Dianne had also zero recollection the day after the party and the fact that she
could not explain why she had forgotten certain memories and the fact that she only had
non-alcoholic beverages could mean that she was involuntarily intoxicated. Furthermore,
it has been stated by another witness that D laughing at the police officers and doing the
actions that she did to the police officers were “totally out of character”. This would
prove that D would be usually be highly aware of her actions and the consequences of
actions that may result into situations like this, and thus, her acting the way she did
towards the police officers that night may suggest that something had happened to her
prior to answering the door from the police officers. P will argue that intoxication may
not be a defence for assaulting a police officer, however, a counterargument could be that
her actions are involuntary due to the fact that she was already stumbling when she
answered the door.

In conclusion, D would most likely not be criminally responsible for the offence.

Tutorial:
How is it a summary offence: looking at the long title, s 34B says “summary”, AIA
38(2).