Failure to Comply with Police Direction

Failure to comply with a police direction is an offence under section 39 of the Law Enforcement (Powers and Responsibilities) Act 2002 which carries a maximum penalty of 12 months in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that you failed or refused when required under Part 4, Division 5 of the Act to stop a vehicle you were driving, or to otherwise comply with a direction.

Part 4, Division 5 contains sections which outline the powers of police officers in New South Wales to stop, search and detain vehicles without a warrant, as well as to erect and give directions at roadblocks.

Section 36 empowers police officers in New South Wales to stop, search and detain a vehicle without a warrant on a road or road-related area if the officer suspects on reasonable grounds that:

1. It contains a prohibited drug or plant, or anything stolen or otherwise unlawfully obtained,
2. It is being or may have been used in an offence,
3. It contains anything used or intended for use in an offence,
4. It is in a public place or school and contains a dangerous article that is being, was or may have been used in an offence, or 
5. Circumstances exist in or near a public place or school that are likely to give rise to a serious risk to public safety and stopping, searching or detaining the vehicle may lessen that risk.

Section 36A of the Act provides a police officer with the power to stop a vehicle if the officer suspects on the reasonable grounds that the driver or a passenger in the vehicle is subject to an arrest, detention or search power.

Section 37 of the Act empowers a senior police officer such as a police area or district commander, a duty officer at a police station or an officer ranked Inspector or above to establish a roadblock on a road or road-related area, and to authorise other officers to stop any vehicle suspected on reasonable grounds of being:

1. Used in the commission of a serious offence, or
2. Likely to give rise to a serious public safety risk.

Section 38 of the Act makes clear that a police officer who exercises a stop, search or detention power under the preceding sections is empowered to give reasonable directions to any person in or on the vehicle concerned, or on or in the vicinity of the road, road-related area or other public place or school where the vehicle is located.

You are not guilty of the offence of failing to comply with a police direction if you establish, on the balance of probabilities, that you had a reasonable excuse for your conduct.

General legal defences to the offence include duress, necessity and self-defence.

If you raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances.

You are entitled to an acquittal if the prosecution is unable to do this.