Should an “add on” charge of “resisting” be automatically dropped if the main charge is acquitted?

Question

Suppose someone gets arrested for a crime they know they didn't commit, and in the process of being arrested, the also get slapped with a resisting charge. My question is, if they are totally innocent and the court acquits the accused of the main charge, should the added on charge of resisting be dropped automatically since they should have never been arrested in the first place and thus never been put in the situation where they could get a resisting charge?

For example, imagine someone gets arrested for some crime and in the process, is so shaken up and has such a distrust for officers in that area he/she is being arrest at, that the person actually does resist but mainly for their safety like to see what is going on. However, since they are totally innocent of the main crime, why then should the resisting "stick"? A valid defense would be "I should have never been arrested in the first place, therefore the resisting charge should also be dropped". If I was a judge, I would say that is a valid point. If police go around arresting people with no proof and then slap on an extra resisting charge, to me, if the main charge is acquitted, then the secondary charge of resisting should automatically be acquitted as well without going to the jury.

Answer 1

No

If the police want to arrest you your legal obligation is to submit and, if the arrest was a violation of your rights, pursue a legal remedy afterwards. You do not have a right to resist an arrest even if that arrest is without legal basis.

"Resisting arrest" is a specific crime with a specific definition. For example, in new-south-wales it is in s546c of the Crimes Act 1900 and it says:

Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both.

If you are charged with resisting arrest the state needs to prove each element of that crime beyond a reasonable doubt. If they can't do that the charge will be dismissed.

If they can prove it then you may have a defence to resisting arrest if:

• you did not know that the person was a police officer or

• you did not know that you were being arrested

• if the police officer was not acting lawfully. However, a police officer will be acting lawfully even if the arrest is subsequently found to be unlawful provided they are acting in good faith and without malice. Suspecting you of committing a crime even if you didn’t makes it lawful to arrest you.

Answer 2

No.

Quite obviously there should be no trumped up charges against a person that is being arrested. If we find that the police force, or certain police officers, are one specific police officer tend to claim that people being arrested "resisted arrest", when no such thing happened, then action should be taken against the police officers in question.

And quite obviously, if a police officer has been shown to be an unreliable witness (for example police officer claims that you knocked down an old lady and stole her handbag, and then you resisted arrest, and the court finds the story about the old lady and her handbag is nonsense), then this should be taken into account when the jury checks if the police officer is a reliable witness.

It should also be taken into account that for example a thief should expect to be arrested and should behave appropriately, while a completely innocent person who has no reason to expect an arrest might act in an inapproriate way, depending on how the police performed the arrest. If someone jumps on you, it will take some time to figure out that the person is wearing a police uniform and may take longer to figure out that you are being arrested, especially when you know that you haven't done anything that warrants an arrest.

All that should be taken into account, but the charge of "resisting arrest" shouldn't be automatically dropped. Only after the case is examined and there is no proof beyond reasonable doubt that you resisted arrest.

But if a police officer walked calmly towards you and says "Mr. Smith, I arrest you for robbing that old lady. You have the right to remain silent etc. etc. " and you punch him and knock him out in front of witnesses, that is something you shouldn't have done even if you were totally innocent of the robbery.