Northern Territory Consolidated Acts Northern Territory Consolidated ActsSchedule I Criminal Code of the Northern Territory of Australia
Division 1 Definitions: Commission of offence: division of
offences: attempts
In this Code:
"abnormality of mind" means abnormality of mind arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease, illness or injury.
"act", in relation to an accused person, means the deed alleged to have been done by him. it is not limited to bodily movement and it includes the deed of another caused, induced or adopted by him or done pursuant to a common intention.
"act of piracy", for Part III, Division 6, see section 72A.
"adult" means a person of or over the age of 18 years.
"agent", for Part VII, Division 5, see section 236E.
aggravated offence :
(a) for Part VI – see section 149B; or
(b) for Part VIA – see section 208G.
agreement about conduct that corrupts a betting outcome of an event , for Part VII, Division 5A, see section 237B(2).
"aircraft" includes hovercraft.
"alters" includes adds to.
application of force and like terms include striking, touching, moving and the application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing if applied to such a degree as to cause injury or personal discomfort.
"appropriates", for Part VI, Division 5A, see section 193A(1).
"appropriation", for Part VII, Division 1, see section 212.
"article", for Part VIA, see section 208G.
belongs :
(a) in relation to property:
(i) for Part VII, Division 1 – see section 211; or
(ii) for Part VII, Division 2 – see section 228AC; or
(b) for Part VII, Division 6 – see section 239.
benefit :
(a) for Part IV – see section 75B; or
(b) for Part VII, Division 5 – see section 236E.
"bet", for Part VII, Division 5A, see section 237C(1).
"birth", see section 1C.
"building" means any structure complete or otherwise, not being a flimsy or insubstantial structure by the standards of the community to which the owner or occupier of it belongs, that, except in the 3 cases hereinafter mentioned, is not readily moveable and that is used or intended for the occupation of man or his animals or the storage or shelter of his goods. it includes a caravan, ship and an erected tent used or intended for any such purpose.
"cause a financial disadvantage", for Part VII, Division 5A, see section 237E(2).
"causes", for Part VII, Division 6, see section 240.
"child" means a person who is not an adult.
"circumstance of aggravation" means any circumstance by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.
"close family member", for Part VIA, Division 6, see section 208M.
"coercion" means physical or mental pressure forcing the person said to be coerced to do what he would not otherwise do.
"cognitive impairment", for Part VIA, Division 5, see section 208L.
"collection" does not include a collection made or exhibited for the purpose of effecting sales or other commercial dealings.
"committal for trial" includes committal for sentence.
"conduct", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AD(1).
conduct that corrupts a betting outcome of an event , for Part VII, Division 5A, see section 237B(1).
consent :
(a) for Part VI, Division 7A – see section 208AA; or
(b) for Part VIA – see section 208GA.
"correctional services officer", see section 16 of the Correctional Services Act 2014 .
"counterfeit token" means a token that is not genuine and that is intended to resemble or pass for a genuine token.
"credit" means credit in respect of the payment or repayment of money and also credit in respect of the delivery of goods, the obtaining of service, the doing of work or the performance of any other obligation whether legally enforceable or not.
"Crown Law Officer" means the Attorney-General or the Director of Public Prosecutions and includes a person authorized under a law of the Territory to exercise a power or perform a function in the name of or on behalf of a Crown Law Officer.
"custodial correctional facility", see section 11(1)(a) of the Correctional Services Act 2014 .
"damage", for Part VII, Division 6, see section 238.
"damages" includes destroys and, when used in relation to a document or writing, includes obliterating and rendering it illegible either in whole or in part.
deal in , for Part VII, Division 2A, see section 228A.
"deals with", for Part VII, Division 3, see section 229.
"death" means:
(a) the irreversible cessation of all function of a person's brain, including the brain stem; or
(b) the irreversible cessation of circulation of blood in a person's body.
deception :
(a) except for Part VII, Division 2:
(i) means intentional deception by word or conduct as to fact or law and includes a deception as to the present intention of the person using the deception or another person; and
(ii) includes an act or thing done or omitted to be done with the intention of causing the following to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make:
(A) a computer system;
(B) a machine that is designed to operate by means of payment or identification; or
(b) for Part VII, Division 2 – see section 228AC.
"declared offence" means an offence against a law of the Territory that, under an Act, is declared to be an offence to which Part IIAA applies.
"demand with a menace", for Part VII, Division 2, see section 228AF.
"depriving", for Part VI, Division 5A, see section 193A(1).
"dishonesty", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AGA(1).
"distribute", for Part VI, Division 7A, see section 208AA.
"duress" means a threat to commit upon any person an offence against the person for which an offender may be sentenced to imprisonment for 7 years or longer.
"dwelling-house" means any building or part of a building kept by the owner or occupier for his residence or the residence of his family, guests or servants; it is immaterial that from time to time it is uninhabited.
"election" means any election held under the authority of any statute providing for the choice of persons to fill any office or place of a public character.
"emergency worker", for Part VI, Division 5, see section 187(2).
"employed in the public service" includes employed in an Agency under the Public Sector Employment and Management Act 1993 , as a police officer or to execute any process of a court of justice.
"encourage", for Part VII, Division 5A, see section 237G.
"engage in conduct", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AD(2).
"enters", in relation to a building, includes the entry into the building of any part of the body of the person said to have entered that building or any part of an instrument used by him.
"event", except for Part VII, Division 5A, means the result of an act or omission.
"event", for Part VII, Division 5A, see section 237D(1).
"event contingency", for Part VII, Division 5A, see section 237D(2).
"evidential burden", for Part IIAA and Schedule 1 provisions, has the meaning in section 43BT.
"explosive substance" includes a gaseous substance in such a state of compression as to be capable of explosion.
"false document", for Part VII, Division 7, see section 251.
"fault element", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AH.
"fault element of basic intent", for Part IIAA and Schedule 1 provisions, means a fault element of intention for a physical element that consists only of conduct.
"gain":
(a) means:
(i) gain of property; or
(ii) gain of services provided free of cost or at less than the usual cost; and
(b) includes temporary gain and a gain by keeping what one has.
"genitals", for Part VIA, see section 208G.
harm has the meaning in section 1A.
"have" or has in possession includes having under control in any place, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.
"historical offence", for Part VIA, see section 208G.
"identification documentation", for Part VII, Division 2A, see section 228A.
"identification information", for Part VII, Division 2A, see section 228A.
"image", for Part VI, Division 7A, see section 208AA.
"improper", for Part IV, see section 75C.
"indecent", for Part VIA, see section 208GB(1).
indictable offence :
(a) see section 3(2); or
(b) for Part VII, Division 3 – see section 229.
"intention", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AI.
"intimate image", for Part VI, Division 7A, see section 208AA.
"intoxication", for Part IIAA and Schedule 1 provisions, means intoxication because of the influence of alcohol, a drug or any other substance.
"involuntary intoxication" means the person concerned is under the influence of an intoxicating substance caused by the involuntary ingestion of it, his honest and reasonable mistake as to the nature of it, some physical idiosyncrasy of which he was unaware or the coercion, mistake or deception of another.
"Judge" means a Supreme Court judge.
"judicial proceedings" means any proceedings had or taken in or before a court, tribunal or person in which evidence may be taken on oath.
"knowingly", used in connection with any term denoting doing, uttering or using, implies knowledge of the character of the thing done, uttered or used.
"knowledge", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AJ.
"law enforcement officer", for Part VI, see section 149B.
"legal burden", for Part IIAA and Schedule 1 provisions, has the meaning in section 43BQ.
"local government election" means any election held under any law relating to local government.
"loss" means loss of property and includes a loss by not getting what one might get as well as a loss by parting with what one has.
"married", for Part VIA, see section 208G.
"medical treatment" includes dental treatment and all forms of surgery.
"menace":
(a) except for Part VII, Division 2, includes a threat of an injury, accusation or detriment of any kind to be caused or to be made against any person either by the offender or by any other person if the demand is not complied with; or
(b) for Part VII, Division 2 – see section 228AD.
"money" includes an instrument for the payment of money that may be negotiated by an ADI, coins, cheques and any other orders, warrants or authorities for the payment of money.
"mortgaged goods" includes any goods and chattels and any live animals and their progeny and any crops or produce of the earth, whether growing or severed, that are subject for the time being to the provisions of any written instrument by which a valid charge or lien is created upon them by way of security for any debt or obligation.
"negligent", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AL.
"night" or night-time means the interval between 9 o'clock in the evening and 6 o'clock in the morning.
obtain :
(a) for Part IV – see section 75A; or
(b) for Part VII, except for sections 228AE and 228AH and Division 5, includes:
(i) obtain for another person; and
(ii) induce a third person to do something that results in another person obtaining; or
(c) for section 228AH – see section 228AE; or
(d) for Part VII, Division 5 – see section 236F.
"obtain a financial advantage", for Part VII, Division 5A, see section 237E(1).
"offensive weapon" means any article made or adapted to cause injury or fear of injury to the person or by which the person having it intends to cause injury or fear of injury to the person.
"owner" includes any part owner and any person having possession or control of, or any special property in, the property in question. it also, as does the term "person" and other like terms when used with reference to property, includes the Sovereign and any corporation, local authority and public body constituted by or under any statute and any other association of persons capable of owning property.
"part of the body", for Part VIA, see section 208G.
"penis", for Part VIA, see section 208G.
person similarly circumstanced does not include a person who is voluntarily intoxicated.
"physical element", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AE.
"pirate", for Part III, Division 6, see section 72.
"position of authority", for Part VIA, see section 208GC.
"principal", for Part VII, Division 5, see section 236E.
"prisoner", see section 6 of the Correctional Services Act 2014 .
"proceeds of crime", for Part VII, Division 3, see section 229.
"property":
(a) except for Part VII, Divisions 1 and 6, means every thing, animate or inanimate, capable of being the subject of ownership including:
(i) things in action and other intangible property; and
(ii) wild creatures that have been tamed or are ordinarily kept in captivity and other wild creatures or their carcasses if they have been reduced into possession that has not been lost or abandoned or are in the course of being reduced into possession; or
(b) for Part VII, Division 1 – see section 210; or
(c) for Part VII, Division 6 – see section 238.
"property damage offence", for Part VII, Division 6, see section 238.
"public duty", for Part VII, Division 7, see section 250.
"public officer", see section 4 of the Independent Commissioner Against Corruption Act 2017 .
"Public Sector" has the same meaning as in the Public Sector Employment and Management Act 1993 .
"reckless", for Part IIAA and Schedule 1 provisions, has the meaning in section 43AK.
"riot", see section 63(4).
"riotously assembled", see section 63(4).
Schedule 1 offence means an offence against a Schedule 1 provision.
Schedule 1 provision means a provision of this Code specified in Schedule 1.
"self-induced intoxication", for Part IIAA, has the meaning in section 43AR.
"senior rank", for Part VIA, see section 208G.
"serious harm" means any harm (including the cumulative effect of more than one harm):
(a) that endangers, or is likely to endanger, a person's life; or
(b) that is or is likely to be significant and longstanding.
"services", for Part VII, Division 1, see section 209.
"sexual intercourse", for Part VIA, see section 208G.
"sexually involved with", for Part VIA, see section 208GD.
"ship" means every kind of vessel used in navigation not propelled by oars.
"special liability provision" means a provision providing that:
(a) absolute liability applies to one or more (but not all) of the physical elements of an offence; or
(b) in a prosecution for an offence, it is not necessary to prove that the defendant knew something; or
(c) in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed something.
"statutory instrument" means subordinate legislation made pursuant to an Act.
"steals", for Part VI, Division 5A, see section 193A(1).
"summary offence", see section 3.
"supply", for Part VII, Division 1, see section 209.
"theft", see section 217(3).
"token" means a counter, chip or other article that may be used, in appropriate circumstances, in lieu of money.
"touches", for Part VIA, see section 208GE.
"trade secret" means a secret and unique or distinctly different formula, process or method, whether it has been perfected or not, provided it has been recorded by some means and has commercial value.
"trial" includes proceedings upon a plea of guilty.
"uncorroborated testimony" means testimony that is not corroborated in some material particular by other evidence implicating the accused person.
"unlawful" or unlawfully means without authorization, justification or excuse.
"unnecessary force" means force that the user of such force knows is unnecessary for and disproportionate to the occasion or that an ordinary person, similarly circumstanced to the person using such force, would regard as unnecessary for and disproportionate to the occasion.
"utter" means using or dealing with, attempting to use or deal with or attempting to induce any person to use, deal with or act upon, the thing in question.
"valuable security" means a document that is the property of any person and that is evidence of the ownership of property or of the right to recover or receive property.
"vessel" means every kind of vessel used in navigation.
"victim", for Part VII, Division 2A, see section 228A.
"writing" includes:
(a) a seal, mark and sign that is capable of conveying meaning; and
(b) data held in electronic form that is capable of being transformed into a document.
wrongful act and like terms mean an act that is wrong by the ordinary standards of the community. a lawful act may be a wrongful act, but any act expressly declared to be lawful cannot be a wrongful act.
Note for section 1
The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.
(1) Harm is physical harm or harm to a person's mental health, whether temporary or permanent.
(2) Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time.
(3) Harm to a person's mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.
(4) Harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.
A person against whom an offence may be committed under this Code is a person who has been born and who has not already died.
(1) A person's birth occurs at the time the person is fully removed from the mother's body and has an independent existence from the mother.
(2) The following are relevant, but not determinative, as to whether a person has been born:
(a) the person is breathing;
(b) the person's organs are functioning of their own accord;
(c) the person has an independent circulation of blood.
For the purposes of this Part, an offence is committed when a person who possesses any mental element that may be prescribed with respect to that offence does, makes or causes the act, omission or event, or the series or combination of the same, constituting the offence in circumstances where the act, omission or event, or each of them, if there is more than one, is not authorized or justified.
(1) Every offence is either an indictable offence or a summary offence.
(2) An offence is an indictable offence if:
(a) an Act states that the offence is an indictable offence; or
(b) subject to subsection (3)(a), the penalty that may be imposed on an individual for the offence includes imprisonment for a period of more than 2 years.
(3) An offence is a summary offence if:
(a) an Act states that:
(i) the offence is a summary offence; or
(ii) the offence is not an indictable offence; or
(iii) a charge of the offence must be heard and determined summarily; or
(b) the offence is not an indictable offence.
(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
(3) It is immaterial that, by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.
(4) The same facts may constitute one offence and an attempt to commit another offence.
Every accused person is presumed to be innocent until the contrary is proved.
(1) In all cases where intoxication may be regarded for the purposes of determining whether a person is guilty or not guilty of an offence:
(a) it shall be presumed that, until the contrary is proved, the intoxication was voluntary; and
(b) unless the intoxication was involuntary, it shall be presumed evidentially that the accused person foresaw the natural and probable consequences of his conduct.
(2) It is hereby declared that the amendment effected by subsection (1) applies to and in relation to all proceedings before a court in respect of an offence committed on or after 1 January 1984, in which the question of guilt has not been determined before that court before the commencement of this Act, as if the amendment came into operation on 1 January 1984.
(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed by one or some of them, the other or each of the others is presumed to have aided or procured the perpetrator or perpetrators of the offence to commit the offence unless he proves he did not foresee the commission of that offence was a possible consequence of prosecuting that unlawful purpose.
(2) Two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another when they agree to engage in or concur in engaging in any conduct that, if engaged in, would involve them or some or one of them in the commission of an offence or a tort.
When a person counsels another to commit an offence and an offence is committed by the person to whom the counsel is given and because of it, but the offence committed is different from the one counselled or is committed in a different way from the way counselled, the person giving such counsel is presumed to have counselled the offence committed unless he proves the conduct giving rise to the offence committed was not foreseen by him as a possible consequence of giving such counsel.
When a person dies or is found to be dead or to have suffered serious harm after 2 or more persons have used violence against him or his person and it is proved that the death or serious harm was caused as the result or in the course of that violence, but the evidence of the prosecution does not establish by whom it was caused, each of them is presumed either to have caused or aided the other or others to cause the death or serious harm until the contrary is proved if the violence used by him was of such a nature that it was likely to have caused, in the case of death, death or serious harm or, in the case of serious harm, serious harm.
A person who may justifiably apply force to a child for the purposes of discipline, management or control may delegate that power either expressly or by implication to another person who has the custody or control of the child either temporarily or permanently and, where that other person is a school teacher of the child, it shall be presumed that the power has been delegated unless it is expressly withheld.
Division 3 Parties to offences
(1) When an offence is committed, the following persons also are deemed to have taken part in committing the offence and may be charged with actually committing it:
(a) every person who aids another in committing the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another to commit the offence; and
(c) every person who counsels or procures another to commit the offence.
(2) A person who counsels or procures another to commit an offence may be charged with committing the offence or counselling or procuring its commission.
(3) A finding of guilt of counselling or procuring the commission of an offence entails the same consequences in all respects as a finding of guilt of committing the offence.
(1) A person who receives or assists another who, to his knowledge, has committed an offence in order to enable him to escape prosecution becomes an accessory after the fact to the offence.
(2) The rule of law under which a wife cannot be an accessory after the fact to an offence committed by her husband is abolished.
Division 4 Application of criminal law
(1) A person cannot be found guilty of an offence unless the conduct impugned would have constituted an offence under the law in force when it occurred; nor unless that conduct also constitutes an offence under the law in force when he is proceeded against for that conduct.
(2) If the law in force when the conduct impugned occurred differs from that in force at the time of the finding of guilt, the offender cannot be punished to any greater extent than was authorized by the former law or to any greater extent than is authorized by the latter law.
If a person is guilty of the conduct proscribed by any offence it is immaterial that that conduct or some part of it did not occur in the Territory if that conduct affected or was intended to affect the peace, order or good government of the Territory.
(1) Any person who, in the Territory, counsels or procures another to commit, at a place not in the Territory, an offence of such a nature that the conduct giving rise to it is also an offence in the Territory and that offence is in fact committed, is guilty of an offence of the same kind and, subject to subsection (2), is liable to the same punishment as if he had counselled or procured that other person to engage in that conduct in the Territory and he had done so.
(2) A person found guilty under subsection (1) is not liable to greater punishment than that to which the person who actually committed the offence was liable under the law in force in the place where the offence was committed.
(3) A prosecution cannot be instituted under subsection (1) except at the request of the government of the state having jurisdiction in the place where the offence so counselled or procured was committed.
Division 5 Effect of previous finding of guilt or acquittal
In this Division:
"similar offence" means an offence in which the conduct therein impugned is substantially the same as or includes the conduct impugned in the offence to which it is said to be similar.
Subject to sections 19 and 20, it is a defence to a charge of any offence to show that the accused person has already been found guilty or acquitted of:
(a) the same offence;
(b) a similar offence;
(c) an offence of which he might be found guilty upon the trial of the offence charged; or
(d) an offence upon the trial of which he could have been found guilty of the offence charged.
Where the act or omission is such that it causes death or serious harm to another, the accused person may be found guilty of the offence of which he is guilty by reason of such death or serious harm notwithstanding that he has already been found guilty of some other offence constituted by the act or omission.
Subject to section 21, a finding of guilt for or an acquittal of a regulatory offence shall not be a defence to a charge another offence that is not a regulatory offence.
Notwithstanding anything contained in this Division, a court, in any proper case, may order that proceedings brought before the court be stayed on the ground that they are vexatious or harassing and thereupon they shall be stayed.
Part II Criminal responsibility
Except for sections 26(1)(c) and (d) (and sections 23 and 24 to the extent necessary to give effect to section 26(1)(c) and (d)), 30(3) and 38, this Part does not apply to regulatory offences.
A person is not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorized, justified or excused.
Any event resulting from an act or omission that was authorized, justified or excused is, accordingly, authorized, justified or excused.
An act, omission or event expressly declared to be lawful is either authorized or justified and an act, omission or event expressly declared to be authorized or justified is lawful.
(1) An act, omission or event is authorized if it is done, made or caused:
(a) in the exercise of a right granted or recognized by law;
(b) in execution of the law or in obedience to, or in conformity with, the law;
(c) in obedience to the order of a competent authority whom the person doing, making or causing it is bound by law to obey, unless the order is manifestly unlawful; or
(d) subject to subsection (3), pursuant to authority, permission or licence lawfully granted.
(2) Whether an order is or is not manifestly unlawful is a question of law.
(3) A person cannot authorize or permit another to kill him or, except in the case of medical treatment, to cause him serious harm.
In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or serious harm:
(a) to lawfully execute any sentence, process or warrant or make any arrest;
(b) to prevent a person who is being or who has been lawfully arrested from escaping or from being rescued;
(c) to prevent the continuance of a breach of the peace or a renewal of it and to detain any person who is committing or about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give him into the custody of a police officer;
(d) to suppress a riot;
(e) to prevent the commission of an offence;
(k) in the case of a person who is entitled by law to the possession of moveable property, or a person acting by his authority, and who attempts to take possession of it from a person who neither claims right to it nor acts by the authority of a person who claims right to it and the person in possession resists him, to obtain possession of the property, provided he does not intentionally do him harm;
(p) in the case of a parent or guardian of a child, or a person in the place of such parent or guardian, to discipline, manage or control such child;
(pa) to prevent a person reasonably believed to be attempting to, or about to, kill himself, from killing himself;
(q) in the case of the person in command of a ship on a voyage or an aircraft on a flight, or a person acting by his authority, to maintain good order and discipline on board the ship or aircraft;
(r) to assist a person to do any of the things aforesaid.
In the circumstances following, the application of force that will or is likely to kill or cause serious harm is justified provided it is not unnecessary force:
(a) in the case of a police officer when lawfully attempting to arrest or to assist with the arrest of a person whom he reasonably believes to be a person who:
(i) unless arrested, may commit an offence punishable with imprisonment for life;
(ii) has taken flight to avoid arrest; and
(iv) the person has been called upon by the police officer or another police officer to surrender and has been allowed a reasonable opportunity to do so;
(b) in the case of a police officer when attempting to prevent the escape or the rescue of a person from lawful custody whom he reasonably believes to be a person who, unless kept in lawful custody, may commit an offence punishable with imprisonment for life and provided the police officer first calls upon the person attempting to escape or to rescue to surrender or to desist and allows him a reasonable opportunity to do so;
(c) in the case of a correctional officer (as defined in section 4 of the Correctional Services Act 2014 ) when attempting to prevent the escape or the rescue of a person from lawful custody and provided the officer first calls upon the person attempting to escape or to rescue to surrender or to desist and allows him a reasonable opportunity to do so;
(d) in the case of a police officer when attempting to suppress a riot if all of the following apply:
(i) the officer has orally ordered the immediate dispersal of persons who are riotously assembled (the rioters ) or has attempted to give that order;
(ii) the officer believes on reasonable grounds that, because of the rioters' conduct:
(A) someone other than a rioter is in danger of death or serious harm; or
(B) an offence in relation to property punishable with imprisonment for life is being committed;
(iii) if it is practicable to do so – the officer attempts to stop the conduct and gives the rioters a reasonable opportunity to stop the conduct;
(e) in the case of a police officer, or a person acting by his authority, when attempting to prevent a person committing or continuing the commission of an offence of such a nature as to cause the person using the force reasonable apprehension that death or serious harm to another will result;
(g) in the case of a person in command of a ship or an aircraft, or a person acting by his authority or any person on board such ship or aircraft, when attempting to prevent a person committing or continuing the commission of an offence of such a nature as to cause the person using the force reasonable apprehension that death or serious harm will result.
(1) Defensive conduct is justified and a person who does, makes or causes an act, omission or event by engaging in defensive conduct is not criminally responsible for the act, omission or event.
(2) A person engages in defensive conduct only if:
(a) the person believes that the conduct is necessary:
(i) to defend himself or herself or another person;
(ii) to prevent or terminate the unlawful deprivation of his or her or another person's personal liberty;
(iii) to protect property in the person's possession or control from unlawful appropriation, destruction, damage or interference;
(iv) to prevent trespass to land or premises occupied by or in the control of the person;
(v) to remove a trespasser from land or premises occupied by or in the control of the person; or
(vi) to assist a person in possession or control of property to protect that property or to assist a person occupying or in control of land or premises to prevent trespass to or remove a trespasser from that land or premises; and
(b) the conduct is a reasonable response in the circumstances as the person reasonably perceives them.
(3) A person does not engage in defensive conduct if the conduct involves the use of force intended to cause death or serious harm:
(a) to protect property; or
(b) to prevent trespass or remove a trespasser.
(4) For the purposes of subsections (2) and (3), a person trespasses if he or she enters or remains on land or premises:
(a) with intent to commit an offence; or
(b) in circumstances where the entry on to or remaining on the land or premises constitutes an offence.
(5) A person does not engage in defensive conduct if:
(a) he or she is responding to the lawful conduct of another person; and
(b) he or she knows that the other person's conduct is lawful.
(6) Nothing in subsection (5) is to be taken to prevent a person from engaging in defensive conduct in circumstances where the other person's conduct is lawful merely because he or she would be excused from criminal responsibility for that conduct.
(7) Sections 31 and 32 do not apply in relation to defensive conduct.
(1) Subject to subsections (2) and (3), ignorance of the law does not afford an excuse unless knowledge of the law by the offender is expressly declared to be an element of the offence.
(2) A person is excused from criminal responsibility for an act or omission done or made with respect to, or for an event caused to, property in the exercise of an honest claim of right and without intention to defraud.
(3) A person is excused from criminal responsibility for an act, omission or event done, made or caused in contravention of a statutory instrument if, at the time of doing, making or causing it, the statutory instrument was not known to him and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it.
(4) For the purposes of subsection (3), "published" means published in the Gazette or notified in the Gazette as having been made.
(1) A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.
(2) A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.
(3) This section does not apply to an offence against section 155.
A person who does, makes or causes an act, omission or event under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for it to any greater extent than if the real state of things had been such as he believed to exist.
Subject to the express provisions of this Code relating to self-defence and duress, a person is excused from criminal responsibility for an act or omission done or made under such circumstances of sudden and extraordinary emergency that an ordinary person similarly circumstanced would have acted in the same or a similar way; and he is excused from criminal responsibility for an event resulting from such act or omission.
A child under 12 years of age is not criminally responsible for an offence.
(1) A child aged 12 or 13 years can only be criminally responsible for an offence if the child knows that the child's conduct is wrong.
(2) The question whether a child knows that the child's conduct is wrong is one of fact.
(3) The burden of proving that a child knows that the child's conduct is wrong is on the prosecution.
Note for section 38A
This section and section 43AQ are the same and intended to cover both acts and omissions.
Except as expressly provided by this Code, a judicial officer is excused from criminal responsibility for anything done or omitted to be done by him in the exercise of his judicial functions although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.
(1) A person is excused from criminal responsibility for an act, omission or event if it was done, made or caused because of duress provided:
(a) he believed the person making the threat was in a position to execute the threat;
(b) he believed there was no other way he could ensure the threat was not executed;
(c) an ordinary person similarly circumstanced would have acted in the same or a similar way; and
(d) he reported the threat to a police officer as soon as was reasonably practicable, unless the nature of the threat was such that an ordinary person similarly circumstanced would not have reported that threat.
(2) The excuse referred to in subsection (1) does not extend to an act, omission or event that would constitute an offence of which serious harm or an intention to cause such harm is an element; nor to a person who has rendered himself liable to have such a threat made to him by having entered into an association or conspiracy that has as any of its objects the doing of a wrongful act.
A person is excused from criminal responsibility for damage caused to property by the use of such force as was reasonably necessary for the purpose of defending or protecting himself, or any other person, or any property, from injury that he believed, on reasonable grounds, was imminent, provided an ordinary person similarly circumstanced would have acted in the same or a similar way.
Part IIAA Criminal responsibility for Schedule 1 offences and declared offences
Division 1 Preliminary matters
(1) This Part applies only in relation to Schedule 1 offences, and declared offences, committed on or after the commencement of the Part.
(2) The following provisions of Part I do not apply in relation to Schedule 1 offences, or declared offences, committed on or after the commencement of this Part:
(a) section 1 (Definitions), definitions of "act", duress , knowingly and involuntary intoxication ;
(b) section 2 (Commission of offence);
(d) section 4 (Attempts to commit offences);
(e) section 7 (Intoxication);
(f) section 8 (Offences committed in prosecution of common purpose);
(g) section 9 (Mode of execution different from that counselled);
(ga) section 10 (Death or serious harm caused in the course of violence of 2 or more persons);
(h) section 12 (Abettors and accessories before the fact);
(i) section 15 (Application of criminal laws);
(j) section 16 (Offences counselled or procured in the Territory to be committed out of the Territory).
(3) The following provisions of this Code do not apply in relation to Schedule 1 offences, or declared offences, committed on or after the commencement of this Part:
(a) Part II (Criminal Responsibility);
(b) section 277 (Attempts to commit offences);
(c) section 278 (Punishment of attempts to commit offences);
(d) section 280 (Attempts to procure commission of criminal offences);
(e) section 282 (Conspiracy to commit indictable offence).
Note for section 43AA
A term defined in this Part has the meaning given to it for the purposes of this Part and the Schedule 1 provisions. For example, the meaning given to the term conduct in section 43AD(1) applies for the purposes of the partial defence of provocation to a charge of murder (a Schedule 1 offence) – see the signpost definition of the term in section 1.
Division 2 Elements of offence
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault elements for different physical elements.
A person must not be found guilty of committing an offence unless the following is proved:
(a) the existence of the physical elements of the offence that are, under the law creating the offence, relevant to establishing guilt;
(b) for each of the physical elements for which a fault element is required, one of the fault elements for the physical element.
(1) This section applies to a provision of a law that:
(a) creates an offence; and
(b) includes a separate statement:
(i) specifying the fault elements of the offence; or
(ii) classifying the offence as one of strict liability or absolute liability (and thus excluding fault elements).
Example
See the statement under the heading "Fault elements" in section 174FA(1).
(2) Part IIAA applies to the offence.
Note
Part IIAA states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences (for example, see the extended meaning given to the concept of recklessness in section 43AK(4)).
(3) If the statement identifies certain elements as the fault elements of the offence:
(a) the fault elements so identified are the only fault elements of the offence; and
(b) the statement operates to the exclusion of fault elements that might otherwise be implied under provisions of this Code.
Note
Accordingly fault elements that might otherwise be implied under section 43AM are excluded by the statement.
(4) If the statement classifies the offence as one of strict liability, section 43AN(1) applies to the offence.
(5) If the statement classifies the offence as one of absolute liability, section 43AO(1) applies to the offence.
Subdivision 2 Physical elements
(1) Conduct is an act, an omission to perform an act or a state of affairs.
(2) Engage in conduct is to:
(a) perform an act; or
(b) omit to perform an act.
A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, happens.
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
Examples of conduct that is not voluntary
1 A spasm, convulsion or other unwilled bodily movement.
2 An act performed during sleep or unconsciousness.
3 An act performed during impaired consciousness depriving the person of the will to act.
(3) An omission to perform an act is only voluntary if the act omitted is an act the person can perform.
(4) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(5) Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.
(1) An omission to perform an act can only be a physical element if the law creating the offence:
(a) makes it a physical element; or
(b) impliedly provides that the offence is committed by an omission to perform an act that, by law, there is a duty to perform.
(2) However, an omission to perform an act can be a physical element of an offence against a Schedule 1 provision if it is a person's omission to perform any of the duties referred to in Part VI, Division 1.
(3) The fault element for an omission to perform an act referred to in subsection (2) that causes, or that gives rise to danger of, death or harm is, if not otherwise specified in the Schedule 1 provision, the same as the fault element for the result of the omission.
Note for section 43AG(3)
In the absence of subsection (3), the fault element for the conduct consisting of an omission to perform an act would be intention under the default provision in section 43AM(1). Generally in relation to Schedule 1 offences, the fault element for acts that cause etc. death or harm is not specified but the fault element for the result concerned is specified as either intention, recklessness or negligence.
(1) Dishonesty, in relation to conduct, means dishonest according to the standards of ordinary people.
(2) Absolute liability applies to the physical element of conduct in subsection (1).
(3) In a prosecution for an offence to which this Part applies, dishonesty is a matter for the trier of fact.
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent the law that creates an offence from specifying other fault elements for a physical element of the offence.
(1) A person has intention in relation to conduct if the person means to engage in that conduct.
(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.
A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events.
(1) A person is reckless in relation to a result if:
(a) the person is aware of a substantial risk that the result will happen; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) A person is reckless in relation to a circumstance if:
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
A person is negligent in relation to a physical element of an offence if the person's conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist,
that the conduct merits criminal punishment for the offence.
(1) If a law that creates an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element.
(2) If a law that creates an offence does not provide a fault element for a physical element that consists of a result or circumstance, recklessness is the fault element for the physical element.
Note for subsection (2)
Under section 43AK(4), recklessness can be established by proving intention, knowledge or recklessness.
Subdivision 4 Cases where fault elements are not required
(1) If a law that creates an offence provides that an offence is an offence of strict liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 43AX is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of an offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 43AX is available in relation to that physical element.
(3) The existence of strict liability does not make any other defence unavailable.
(1) If a law that creates an offence provides that an offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 43AX is unavailable.
(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of an offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 43AX is unavailable in relation to that physical element.
(3) The existence of absolute liability does not make any other defence unavailable.
Division 3 Circumstances in which there is no criminal responsibility
Subdivision 1 Lack of capacity of children
A child under 12 years of age is not criminally responsible for an offence.
(1) A child aged 12 or 13 years can only be criminally responsible for an offence if the child knows that the child's conduct is wrong.
(2) The question whether a child knows that the child's conduct is wrong is one of fact.
(3) The burden of proving that a child knows that the child's conduct is wrong is on the prosecution.
(1) Intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
(c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the medical practitioner or dentist who prescribed it; or
(d) from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.
(2) However, intoxication is self-induced if a person using a drug as referred to in subsection (1)(c) or (d) knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person's judgment or control.
(1) Evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed.
Note for subsection (1)
A fault element of intention in relation to a result or circumstance is not a fault element of basic intent.
(2) This section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether conduct was accidental.
(3) This section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.
(4) A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(1) If negligence is a fault element for a particular physical element of an offence, in determining whether that fault element existed in relation to a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated.
(2) However, if intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.
(2) However, if:
(a) each physical element of an offence has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief,
evidence of self-induced intoxication cannot be considered in determining whether that knowledge or belief existed.
(3) If any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.
(4) If a person's intoxication is not self-induced, in determining whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
A person is not criminally responsible for an offence if the person's conduct constituting the offence was as a result of intoxication that was not self-induced.
Subdivision 3 Mistake or ignorance
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed and was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
(2) A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note for section 43AX
Section 43AO(2) prevents this section applying in situations of absolute liability.
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, the person is mistaken about, or ignorant of, the existence or content of a law that creates the offence.
(2) However, the person is not criminally responsible for the offence if:
(a) the law creating the offence expressly or impliedly provides that a person is not criminally responsible for the offence in those circumstances; or
(b) the person's ignorance or mistake negates a fault element applying to a physical element of the offence.
(3) In addition, if the law creating the offence is a statutory instrument, the person is not criminally responsible for the offence if, at the time of the conduct constituting the offence, the statutory instrument:
(a) was not known to the person; and
(b) had not been published in the Gazette or otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
(1) A person is not criminally responsible for an offence that has a physical element relating to property if:
(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of that right would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that the person mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Subdivision 4 External factors
A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:
(a) the physical element is brought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard against the bringing about of that physical element.
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress only if the person reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) However, the person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating to carry out conduct of the kind actually carried out.
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence only if:
(a) the person believes the conduct is necessary:
(i) to defend himself or herself or another person; or
(ii) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(iii) to protect property from unlawful appropriation, destruction, damage or interference; or
(iv) to prevent criminal trespass to any land or premises; or
(v) to remove from any land or premises a person who is committing criminal trespass; and
(b) the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) However, the person does not carry out conduct in self-defence if:
(a) the person uses force that involves the intentional infliction of death or serious harm:
(i) to protect property; or
(ii) to prevent criminal trespass; or
(iii) to remove a person who is committing criminal trespass; or
(b) the person is responding to lawful conduct that the person knew was lawful.
(4) Conduct is not lawful for subsection (3)(b) merely because the person carrying it out is not criminally responsible for it.
A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.
Division 4 Extensions of criminal responsibility
(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and, unless otherwise provided, is punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence.
(3) The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(4) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note for subsection (4)
Under section 43AC, only one of the fault elements of intention or knowledge would need to be established in relation to each physical element of the offence attempted.
(5) Subsection (4) has effect subject to subsection (9).
(6) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(7) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
(8) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(9) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(10) It is not an offence to attempt to commit an offence against section 43BG, 43BGA, 43BH or 43BJ.
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) the person's conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) the person's conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(4) Subsection (3) has effect subject to subsection (7).
(5) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated the person's involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other offender has not been prosecuted or has not been found guilty.
(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also for the purpose of determining whether a person commits the offence because of the operation of this section.
(8) Any special liability provisions that apply to an offence apply also for the purpose of determining whether a person commits the offence because of the operation of this section.
(9) If the trier of fact is satisfied beyond reasonable doubt that a person committed an offence because of the operation of this section or otherwise than because of the operation of this section, but is unable to determine which, the trier of fact may nevertheless find the person guilty of the offence.
(1) A person is taken to have committed an offence if:
(a) the person and at least one other person enter into an agreement to commit an offence; and
(b) an offence is committed either:
(i) in accordance with the agreement; or
(ii) in the course of carrying out the agreement.
(2) For subsection (1)(b)(i), an offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence ) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct – the result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance – the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.
(3) For subsection (1)(b)(ii), an offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence ) that another person in fact commits in the course of carrying out the agreement.
(4) A person commits an offence because of the operation of this section only if the person and at least one other party to the agreement intend that an offence will be committed under the agreement.
(5) An agreement:
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.
(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct making up any of the physical elements of the joint offence was engaged in, the person:
(a) terminated the person's involvement; and
(b) took all reasonable steps to prevent the conduct from being engaged in.
(7) A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement is not prosecuted or found guilty; or
(b) the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in.
(8) Any defences, procedures, limitations or qualifying provisions that apply to the joint offence apply also for the purposes of determining whether a person commits the offence because of the operation of this section.
(9) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person commits the offence because of the operation of this section.
(10) If the trier of fact is satisfied beyond reasonable doubt that a person committed an offence because of the operation of this section or otherwise than because of the operation of this section, but is unable to determine which, the trier of fact may nevertheless find the person guilty of the offence.
(1) A person is taken to have committed an offence if:
(a) the person procures someone else to engage in conduct that (whether or not together with conduct engaged in by the person) makes up the physical elements of the offence consisting of conduct; and
(b) any physical element of the offence consisting of a circumstance exists; and
(c) any physical element of the offence consisting of a result of the conduct happens; and
(d) when the person procured the other person to engage in the conduct, the person had the fault element applying to each physical element of the offence.
(1A) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also for the purposes of determining whether a person commits the offence because of the operation of this section.
(2) To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.
(1) A person who urges the commission of an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
(3) Subsection (2) has effect subject to subsection (6).
(4) A person may be found guilty even if committing the offence incited is impossible.
(5) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in relation to that offence.
(6) Any special liability provisions that apply to an offence apply also to the offence of incitement in relation to that offence.
(7) It is not an offence to incite the commission of an offence against section 43BF, this section or section 43BJ.
Maximum penalty:
(a) if the offence incited is punishable by life imprisonment – imprisonment for 10 years; or
(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment – imprisonment for 7 years; or
(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more – imprisonment for 5 years; or
(d) if the offence is otherwise punishable by imprisonment – imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
(e) if the offence incited is not punishable by imprisonment – the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.
(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and, unless otherwise provided, is punishable as if the offence to which the conspiracy relates had been committed.
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(3) Subsection (2) has effect subject to subsection (9).
(4) A person may be found guilty of conspiracy to commit an offence even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists; or
(d) subject to subsection (5)(a), all other parties to the agreement have been acquitted of the conspiracy.
(5) A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(6) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(7) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(8) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(9) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(10) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions.
(11) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
(1) A reference in an Act to an offence against an Act (including this Code) includes a reference to an offence against section 43BF, 43BI or 43BJ that relates to such an offence.
(2) A reference in an Act (including this Code) to a particular offence includes a reference to an offence against section 43BF, 43BI or 43BJ that relates to that offence.
(3) Subsection (1) or (2) does not apply if an Act is expressly or impliedly to the contrary effect.
Note for section 43BJA
Sections 43BG, 43BGA and 43BH operate as extensions of principal offences and accordingly are not mentioned in this section.
Division 5 Corporate criminal responsibility
(1) This Code applies to bodies corporate as well as individuals.
(2) This Code applies to bodies corporate in the same way as it applies to individuals, but subject to the changes made by this Part and any other changes necessary because criminal liability is being imposed on a body corporate rather than an individual.
(3) A body corporate may be found guilty of any offence, including one punishable by imprisonment.
If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.
(1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
(2) The ways in which authorisation or permission may be established include:
(a) proving that the body corporate's board of directors intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; and
(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; and
(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; and
(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.
(3) Subsection (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct or the authorisation or permission.
(4) Factors relevant to the application of subsection (2)(c) and (d) include:
(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.
(5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.
(6) In this section:
"board of directors" means the body (by whatever name called) exercising the executive authority of the body corporate.
"corporate culture", for a body corporate, means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant conduct happens.
"high managerial agent", of a body corporate, means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy.
(1) The test of negligence for a body corporate is that set out in section 43AL.
(2) Subsection (3) applies if:
(a) negligence is a fault element in relation to a physical element of an offence; and
(b) no individual employee, agent or officer of the body corporate has that fault element.
(3) The fault element of negligence may exist on the part of the body corporate if its conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).
(4) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
(1) A body corporate can only rely on section 43AX in relation to conduct that would, apart from this section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who engaged in the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and
(b) the body corporate proves that it exercised due diligence to prevent the conduct.
(2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
A body corporate cannot rely on section 43BA in relation to a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.
Division 6 Proof of criminal responsibility
The legal burden, in relation to a matter, is the burden of proving the existence of the matter.
(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof.
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if a law specifies a different standard of proof.
The evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
(1) Subject to section 43BV, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Division 3 or Part IIA bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) bears an evidential burden in relation to the matter.
(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is a question of law.
A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly:
(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the contrary is proved.
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
A law that allows the prosecution to make an averment does not allow the prosecution to aver any fault element of an offence.
Division 7 Geographical application
(1) This Division extends the application of a law of the Territory that creates an offence beyond the territorial limits of the Territory (and Australia) if the required geographical nexus exists for the offence.
(2) If a law that creates an offence provides for any geographical consideration for an offence, the provision prevails over any inconsistent provision of this Division.
Examples for subsection (2)
1 A law creating an offence may provide that the place of commission of the offence is (explicitly or by necessary implication) an element of the offence.
2 A law creating an offence may provide for its application outside the Territory and exclude (explicitly or by necessary implication) the requirement for a geographical nexus between the Territory and an element of the offence.
(1) For this Division, the required geographical nexus is the geographical nexus referred to in section 43CA(2).
(2) For this Division, the place where an offence is committed is the place where any of the physical elements of the offence happen.
(3) For this Division, the place where an offence has an effect includes:
(a) any place whose peace, welfare or good government is threatened by the offence; and
(b) any place where the offence would have an effect (or would cause such a threat) if the offence were committed.
(1) An offence against a law is committed if:
(a) disregarding any geographical considerations, all elements of the offence exist; and
(b) a geographical nexus exists between the Territory and the offence.
(2) A geographical nexus exists between the Territory and an offence if:
(a) the offence is committed completely or partly in the Territory, whether or not the offence has any effect in the Territory; or
(b) the offence is committed completely outside the Territory (whether or not outside Australia) but has an effect in the Territory.
(1) This Division applies to an offence committed partly in the Territory and partly in a place outside the Territory (whether or not outside Australia), even if it is not also an offence in that place.
(2) This Division applies to an offence committed completely outside the Territory (whether or not outside Australia) only if:
(a) it is also an offence in the place where it is committed; or
(b) it is not also an offence in that place, but the tribunal of fact is satisfied the offence is such a threat to the peace, welfare or good government of the Territory that it justifies criminal punishment in the Territory.
(1) The required geographical nexus is conclusively presumed for an offence unless rebutted under subsection (2) or (4).
(2) If a person charged with an offence disputes the existence of the required geographical nexus for the offence, the following provisions apply:
(a) the court must proceed with the trial of the offence in the usual way;
(b) if, at the end of the trial, the tribunal of fact is satisfied on the balance of probabilities that the required geographical nexus does not exist, it must make or return a finding to that effect, and the court must dismiss the charge;
(c) however, if, disregarding any geographical considerations, the tribunal of fact would find the person not guilty of the offence (other than because of mental impairment), it must make or return a verdict of not guilty;
(d) also, if, disregarding any geographical considerations, the tribunal of fact would find the person not guilty of the offence only because of mental impairment, it must make or return a verdict that the person is not guilty of the offence because of mental impairment.
(3) This section applies to any alternative verdict available by law to the tribunal of fact in relation to another offence with which the person was not charged.
(4) The tribunal of fact may make or return a finding of guilty in relation to the other offence (referred to in subsection (3)) unless satisfied on the balance of probabilities the required geographical nexus does not exist for the other offence.
(5) If the issue of whether the required geographical nexus exists for an offence is raised before the trial, the issue must be reserved for consideration at the trial.
(1) This section applies if a person may exercise a power or perform a function under a law on reasonable suspicion or belief that an offence has been committed.
(2) The person may exercise the power or perform the function if the person suspects or believes, as the case requires, on reasonable grounds that all the elements required for the offence exist.
(3) Subsection (2) applies whether or not the person suspects or believes, or has any ground to suspect or believe, that the required geographical nexus exists for the offence.
Part IIA Mental impairment and unfitness to be tried
In this Part:
"appropriate person" means:
(a) in relation to an accused person or supervised person who is detained or in custody in, or receives treatment, services or assistance in, at or from, an approved treatment facility or an approved temporary treatment facility within the meaning of the Mental Health and Related Services Act 1998 – the CEO (Health);
(b) in relation to an accused person or supervised person who is detained or in custody in, or receives treatment, services or assistance in, at or from, a prescribed person, organisation or facility or a person, organisation or facility who or which is a member of a class of prescribed persons, organisations or facilities – the CEO (Health);
(c) in relation to a person who is a represented adult as defined in section 3 of the Guardianship of Adults Act 2016 – the CEO (Health); or
(d) in relation to a person who is held in custody in a custodial correctional facility or is under the supervision of a probation and parole officer under the Parole Act 1971 – the chief executive officer of the Agency administering that Act.
"CEO (Health)" means the chief executive officer of the Agency administering the Medical Services Act 1982 .
chief executive officer has the same meaning as in the Public Sector Employment and Management Act 1993 .
"committal proceedings" means proceedings to determine whether or not to commit a person to trial under Part V of the Local Court (Criminal Procedure) Act 1928 .
"court" means the Supreme Court.
"custodial supervision order" means a supervision order referred to in section 43ZA(1)(a).
"expert" means a person who holds a qualification or has experience or expertise that is relevant to the mental impairment, condition or disability of an accused person or a supervised person.
"investigation" means an investigation into the fitness of an accused person to stand trial conducted under Division 3.
"mental illness" means an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli (although such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur).
"mental impairment" includes senility, intellectual disability, mental illness, brain damage and involuntary intoxication.
"next of kin", in relation to a person, means the person's parent, spouse or de facto partner, sibling or child or any other person who is the person's primary carer.
"non-custodial supervision order" means a supervision order referred to in section 43ZA(1)(b).
"special hearing" means a hearing conducted under Division 4.
"supervised person" means a person who is the subject of a supervision order.
"supervision order" means a custodial supervision order or a
non-custodial
supervision order made by a court under Division 5.
"victim" means a person who suffered injury, loss or damage as a direct result of an offence or conduct that would, but for the mental impairment or unfitness to be tried of the person who carried out the conduct, have constituted an offence.
In Divisions 6 and 7:
"supervised person" means the person the supervision of whom is the subject of a hearing referred to in those Divisions.
(1) The defence of mental impairment is established if the court finds that a person charged with an offence was, at the time of carrying out the conduct constituting the offence, suffering from a mental impairment and as a consequence of that impairment:
(a) he or she did not know the nature and quality of the conduct;
(b) he or she did not know that the conduct was wrong (that is he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) he or she was not able to control his or her actions.
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
(1) A person is presumed not to have been suffering a mental impairment unless the contrary is proved.
(2) The party raising the defence of mental impairment bears the onus of rebutting the presumption specified in subsection (1).
The question of whether a person was suffering from a mental impairment having the effect specified in section 43C(1)(a), (b) or (c):
(a) is a question of fact; and
(b) subject to sections 43H and 43XA, is to be determined by a jury on the balance of probabilities.
(1) The defence of mental impairment may be raised:
(a) by the defence at any time during the trial;
(b) by the court on application by the prosecution; or
(c) by the court on its own initiative.
(2) If the defence of mental impairment is raised during the trial, the issues relating to establishing the defence are to be separately tried.
(3) If the defence of mental impairment arises during a committal proceeding, the question is to be reserved for consideration by the court during the trial of the accused person.
(4) A committal proceeding is not to be discontinued and the accused person discharged only because the defence of mental impairment has been raised during the committal proceeding.
(1) If the defence of mental impairment is raised during the trial, the court:
(a) must hear the evidence and representations as to the accused person's mental competence produced by the parties; and
(b) on application by the defence or the prosecution or on its own initiative – may require the accused person to be examined by a psychiatrist or other appropriate expert and the results of the examination to be reported to the court.
(2) After the evidence has concluded and the parties have addressed the jury, the Judge must direct the jury to consider:
(a) the question of mental impairment and determine whether on the balance of probabilities the defence of mental impairment is established; and
(b) whether the evidence establishes the elements of the offence the accused person is charged with, or an offence that the accused person may be found alternatively guilty of, beyond reasonable doubt,
and to determine whether the accused person:
(c) is not guilty of the offence charged;
(d) is not guilty of the offence charged because of his or her mental impairment; or
(e) committed the offence charged or an offence that he or she may be found alternatively guilty of.
(3) In directing the jury, the Judge must explain to the jury the findings that it may make and the consequences of the findings in law and otherwise.
If the parties to a prosecution of an offence agree, the court may, at any time during the trial of the offence, accept a plea and record a finding of not guilty of the offence because of mental impairment.
(1) If an accused person is found not guilty of the offence charged, the court must discharge the accused person.
(2) If an accused person is found not guilty because of mental impairment, the court must:
(a) declare that the accused person is liable to supervision under Division 5; or
(b) order that the accused person be released unconditionally.
(3) If the court makes a declaration under subsection (2)(a), the court may also make the interim orders it considers just, including one or more of the following orders:
(a) an order for the bail of the accused person;
(b) an order that the accused person be remanded in custody (whether in a custodial correctional facility or another place the court considers appropriate);
(c) an order for the examination of the accused person by a psychiatrist or other appropriate expert;
(d) if the court makes an order referred to in paragraph (c) – an order that a report of the results of the examination be produced before the court.
(3A) The court must not make an interim order under subsection (3)(b) remanding the accused person in custody in a custodial correctional facility unless the court is satisfied there is no practical alternative given the circumstances of the accused person.
(4) If an accused person is found guilty of the offence charged or an offence that he or she may be found guilty alternatively of, the court must record the jury's verdict and proceed to deal with the conviction and sentencing of the accused person in the normal way.
Division 3 Unfitness to stand trial
(1) A person charged with an offence is unfit to stand trial if the person is:
(a) unable to understand the nature of the charge against him or her;
(b) unable to plead to the charge and to exercise the right of challenge;
(c) unable to understand the nature of the trial (that is that a trial is an inquiry as to whether the person committed the offence);
(d) unable to follow the course of the proceedings;
(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) unable to give instructions to his or her legal counsel.
(2) A person is not unfit to stand trial only because he or she suffers from memory loss.
(1) A person is presumed to be fit to stand trial.
(2) The presumption of fitness to stand trial is rebutted only if it is established by an investigation under this Division that the person is unfit to stand trial.
(3) If the question of a person's fitness to stand trial is raised by the prosecution or the defence, the party raising the question bears the onus of rebutting the presumption of fitness.
(4) If the question of a person's fitness to stand trial is raised by the court, the prosecution has carriage of the matter and no party bears the onus of rebutting the presumption of fitness.
The question of whether a person is fit to stand trial is a question of fact to be determined by a jury on the balance of probabilities.
(1) If the question of an accused person's fitness to stand trial arises at committal proceedings:
(a) the accused person is not to be discharged only because the question has been raised during the committal proceedings;
(b) the committal proceedings are to be completed in accordance with the Local Court (Criminal Procedure) Act 1928 (whether or not section 110 of that Act is complied with); and
(c) if the accused person is committed for trial – the question is to be reserved for consideration by the court during the trial of the accused person.
(2) In the event of an inconsistency between Part V of the Local Court (Criminal Procedure) Act 1928 and this section, this section prevails to the extent of the inconsistency.
(1) The question of whether an accused person is fit to stand trial may be raised in the court by the prosecution or the defence, or by the court, at any time after the presentation of the indictment.
(2) The court must order an investigation into the fitness of the accused person to stand trial if:
(a) the question of fitness was reserved during the committal proceedings; or
(b) the Judge is satisfied that there are reasonable grounds on which to question the accused person's fitness to stand trial.
(3) If the court makes an order for an investigation into the fitness of the accused person after the trial has commenced, the court may adjourn or discontinue the trial and conduct an investigation.
(4) The question of the fitness of an accused person to stand trial may be raised more than once in the same proceeding.
Before or at the time the court makes an order under section 43N(2) for an investigation, the court may also make the interim orders it considers just, including one or more of the following orders:
(a) an order for the bail of the accused person;
(b) an order that the accused person be remanded in custody (whether in a custodial correctional facility or another place the court considers appropriate);
(c) an order that any reports relating to the fitness of the accused person to stand trial held by the prosecution or defence be produced before the court;
(d) an order that the accused person undergo an examination by a psychiatrist or other appropriate expert and that a report of the results of the examination be given to the court.
(1) At the commencement of the investigation, the Judge must explain to the jury:
(a) the reason for the investigation;
(b) the findings that may be made and the consequences of those findings in law and otherwise; and
(c) the standard of proof required to establish whether the accused person is fit for trial.
(2) The court must hear the relevant evidence and submissions relating to the question of fitness of the accused person put to the court by the prosecution and the defence.
(3) If the Judge considers that it is in the interests of justice to do so, the court may:
(a) call evidence on its own initiative;
(b) require the accused person to undergo an examination by a psychiatrist or other appropriate expert; and
(c) require the results of an examination referred to in paragraph (b) to be produced before the court.
If the jury finds that the accused is fit to stand trial, the trial of the accused person for committing the offence he or she is charged with is to proceed in the normal way.
(1) If the jury finds that the accused person is unfit to stand trial, the Judge must determine whether there is a reasonable prospect that the accused person might, within 12 months, regain the necessary capacity to stand trial.
(2) In making his or her determination under subsection (1), the Judge:
(a) may call evidence on his or her own initiative; and
(b) must refer to all relevant evidence and make the determination on the balance of probabilities.
(3) If the Judge determines that it is not likely that the accused will become fit to stand trial within 12 months, subject to section 43XA, the court must hold a special hearing within 3 months after the date of the Judge's determination.
(4) If the Judge determines that there is a reasonable prospect that the accused person might become fit for trial within 12 months, the Judge must adjourn the matter of the fitness of the accused person to be tried for the period, not exceeding 12 months, within which the Judge considers that the accused person might become fit.
(5) If the matter is adjourned under subsection (4), the Judge may make the interim orders he or she considers just, including one or more of the following orders:
(a) an order for the bail of the accused person;
(b) an order that the accused person is remanded in custody (whether in a custodial correctional facility or another place the Judge considers appropriate) during the adjournment.
(6) The Judge must not make an order under subsection (5) remanding the accused person in custody in a custodial correctional facility unless the Judge is satisfied that there is no practicable alternative given the circumstances of the accused person.
(7) On the expiry of the adjournment, the accused person is presumed to be fit to stand trial unless a party or the court raises a real and substantive question as to the accused person's fitness to stand trial.
(8) Where the accused person is presumed to be fit, the trial of the accused person for committing the offence he or she is charged with is to proceed in the normal way.
(9) Where a real and substantial question as to the accused person's fitness has been raised in accordance with subsection (7), the court must:
(a) if the adjournment was for less than 12 months – adjourn the matter for a further period that, when added together with the first period of adjournment, does not exceed 12 months; or
(b) subject to section 43XA, hold a special hearing within 3 months after the date the adjournment expires.
(10) If the Judge further adjourns the matter under subsection (9)(a), he or she may vary an order made under subsection (5) in respect of the accused person or make any other orders referred to in subsection (5) as he considers just (and, in doing so, must comply with subsection (6)).
(11) On the expiry of an adjournment under subsection (9)(a), subsections (7), (8), (9) and (10) apply with the necessary changes as if a reference to an adjournment in those subsections were a reference to a further adjournment under subsection (9)(a).
(12) A matter may be adjourned more than once under subsection (9)(a) but the total period of adjournment of a matter under this section is not to exceed 12 months.
Where the court has made an order under section 43R(4) or (9)(a) adjourning the matter of the fitness of an accused person to be tried, the accused person or the Director of Public Prosecutions may at any time during the adjournment apply to the court for either of the following orders:
(a) if the accused person or the Director of Public Prosecutions considers that the accused person has become fit to stand trial – an order that the trial of the accused person for committing the offence he or she is charged with is to proceed in the normal way;
(b) if the accused person or the Director of Public Prosecutions considers that the accused person will not become fit to stand trial by the end of the 12 month period referred to in section 43R – an order to hold a special hearing within 3 months after the date the order is made.
(1) If, at any time before or during the trial of an offence, the parties to the prosecution of the offence agree that the accused person is unfit to stand trial, the court may dispense with an investigation into the fitness of the accused person to stand trial and record a finding that the accused person is unfit to stand trial.
(2) If the court records a finding under subsection (1), section 43R applies in relation to the accused person the subject of the finding as if a reference to an accused person in section 43R were a reference to an accused person referred to in subsection (1).
(1) The Court may, on application or on its own initiative, extend, by not more than 3 months, the period within which a special hearing is to be held under section 43R (including as applied by section 43T) or 43S.
(2) There is no limit to the number of extensions that the court may make under subsection (1).
(1) A special hearing is to determine, on the evidence available, whether an accused person who is found not fit to stand trial:
(a) is not guilty of the offence he or she is charged with;
(b) is not guilty of the offence he or she is charged with because of his or her mental impairment; or
(c) committed the offence he or she is charged with or an offence available as an alternative to the offence charged.
(2) To make a finding under subsection (1)(c), the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused person committed the offence charged or an offence available as an alternative to the offence.
(1) A special hearing is to be conducted as nearly as possible as if it were a criminal trial.
(2) At a special hearing:
(a) the accused person is taken to plead not guilty;
(b) the accused person's legal representative (if any) may exercise the accused person's right of challenge;
(c) the accused person may raise any defence (including the defence of mental impairment) that he or she could raise at a criminal trial;
(d) the rules of evidence apply;
(e) the accused person may give evidence; and
(f) any alternative finding of guilt that would be available for a jury at a criminal trial is available to the jury at the special hearing.
(3) The Judge must explain to the jury:
(a) that a real and substantial question has been raised as to the accused person's fitness to be tried;
(b) the meaning of being unfit to stand trial;
(c) the purpose of the special hearing, the findings that are available to the jury and the consequences of the findings at law and otherwise; and
(d) the standard of proof required for the findings.
(1) If the jury at a special hearing finds the accused person is not guilty of the offence, the finding is taken to be a finding of not guilty at a criminal trial and the court must discharge the accused person.
(2) If the jury at a special hearing finds the accused person is not guilty because of mental impairment, the finding is taken to be a finding of not guilty because of mental impairment at a criminal trial and the court must:
(a) declare that the accused person is liable to supervision under Division 5; or
(b) order that the accused person be released unconditionally.
(3) If the jury at a special hearing finds, on the evidence available, that the accused person committed the offence charged or an offence available as an alternative to the offence charged, the finding:
(a) is taken to be a qualified finding of guilt and does not constitute a basis in law for a finding of guilt of the offence to which the finding relates;
(b) constitutes a bar to further prosecution in respect to the same conduct and circumstances; and
(c) is subject to appeal in the same manner as if it were a finding of guilt at a criminal trial,
and the court must declare that the accused person is liable to supervision under Division 5 or discharge the accused person unconditionally.
If, at any time before or during a special hearing, the parties to the prosecution of the offence agree that the evidence establishes the defence of mental impairment, the court may accept a plea and record a finding of not guilty of the offence because of mental impairment.
If the court records a finding under section 43XA, the court must:
(a) declare that the accused person is liable to supervision under Division 5; or
(b) order that the accused person be released unconditionally.
(1) If the court makes a declaration under section 43X(2)(a) or (3) or 43XB(a), the court may make the interim orders pending the supervision order it considers just, including one or more of the following orders:
(a) an order for the bail of the accused person;
(b) an order that the accused person is to be remanded in custody (whether in a custodial correctional facility or another place the court considers appropriate) until the supervision order is made;
(c) an order that the accused person undergo an examination by a psychiatrist or other appropriate expert;
(d) if the court makes an order referred to in paragraph (c) – an order that a report of the results of the examination be produced before the court.
(2) The court must not make an interim order under subsection (1)(b) remanding the accused person in custody in a custodial correctional facility unless the court is satisfied there is no practical alternative given the circumstances of the accused person.
The court must make a supervision order under this Division in respect of a person if:
(a) the court declares under section 43I(2)(a), 43X(2)(a) or (3) or 43XB(a) that the person is liable to supervision; or
(b) the Court of Criminal Appeal remits a matter to the court under section 412A(3) for the making of a supervision order in respect of the person.
(1) A supervision order may, subject to the conditions the court considers appropriate and specifies in the order:
(a) if it is a custodial supervision order – commit the accused person to custody:
(i) subject to subsection (2) – in a custodial correctional facility; or
(ii) subject to subsection (3) – in another place (an appropriate place ) the court considers appropriate; or
(b) if it is a non-custodial supervision order – release the accused person.
(2) The court must not make a custodial supervision order committing the accused person to custody in a custodial correctional facility unless it is satisfied that there is no practicable alternative given the circumstances of the person.
(2A) Without limiting subsection (1), the court may decide a supervision order is subject to the condition that a person (an authorised person ) authorised by the CEO (Health) may use any reasonable force and assistance:
(a) to enforce the order; and
(b) without limiting paragraph (a) – to take the accused person into custody, or to restrain the accused person, in order to prevent the accused person harming himself or herself or someone else.
(2B) The CEO (Health):
(a) must, by Gazette notice, make supervision directions about:
(i) the qualifications of an authorised person; and
(ii) the reporting by an authorised person of any use of force or assistance for subsection (2A); and
(b) may, in the supervision directions, provide for any other matters about the use of such force and assistance as decided by the CEO (Health).
(2C) An authorised person may use reasonable force or assistance as provided in subsection (2A) only in accordance with the supervision directions.
(3) Unless the court receives a certificate from the CEO (Health) mentioned in subsection (4), the court must not make a supervision order:
(a) committing the accused person to custody in an appropriate place; or
(b) providing for the accused person to receive treatment or other services in, at or from an appropriate place.
(4) The certificate of the CEO (Health) must state:
(a) facilities or services are available in the appropriate place for the custody, care or treatment of the accused person; and
(b) if the appropriate place is a secure care facility – the accused person fulfils the criteria for involuntary treatment and care under the Disability Services Act 1993 .
(1) A supervision order (including a supervision order varied under section 43ZD or 43ZE) is subject to the same rights of appeal as a sentence.
(2) In addition to appeals referred to in subsection (1), the CEO (Health) may appeal to the Court of Criminal Appeal against a supervision order if he or she considers that:
(a) a different supervision order should have been made; and
(b) an appeal should be brought in the public interest.
(3) On an appeal under subsection (2), the Court of Criminal Appeal may confirm the supervision order or quash the supervision order and make another supervision order in substitution for it.
Subject to sections 43ZD, 43ZE and 43ZG, a supervision order is for an indefinite term.
(1) Any of the following persons may apply to the court for an order varying or revoking a supervision order:
(a) the Director of Public Prosecutions;
(b) the supervised person;
(c) a person having the custody, care, control or supervision of the supervised person;
(d) any other person who has an interest that the court recognises as proper for the purposes of making the application.
(2) A person who makes an application under subsection (1) must give notice of the application at least 14 days before the hearing of the application to:
(a) the Director of Public Prosecutions; and
(b) the supervised person; and
(c) the next of kin (if any) of the supervised person; and
(d) a person having the custody, care, control or supervision of the supervised person.
(3) If, on an application to vary or revoke a supervision order by the supervised person, the court refuses the application, the supervised person must not make another application within 12 months after the date of the court's refusal or any other period (which may be lesser or greater) the court fixes.
(3A) The court may adjourn the hearing for the application if the court considers it appropriate to do so.
(3B) If the court adjourns the hearing under subsection (3A), the court may make interim orders for the supervised person (including, for example, an order that the supervised person be remanded in custody in a custodial correctional facility or another place the court considers appropriate).
(3C) The court must not make an interim order under subsection (3B) remanding the supervised person in custody in a custodial correctional facility unless the court is satisfied there is no practical alternative given the circumstances of the supervised person.
(3D) To avoid doubt:
(a) the making of an interim order under subsection (3B) does not revoke the supervision order; and
(b) subject to a direction by the court – the supervision order continues to have effect while an interim order under subsection (3B) is in force.
(4) On hearing the application, the court may:
(a) confirm the supervision order the subject of the application; or
(b) if the application is for an order revoking the supervision order:
(i) revoke the supervision order and release the supervised person unconditionally; or
(ii) vary the conditions of the supervision order; or
(c) if the application is for an order varying the supervision order:
(i) vary the conditions of the supervision order;
(ii) where the supervision order is a non-custodial supervision order – vary the supervision order to a custodial supervision order; or
(iii) where the supervision order is a custodial supervision order – vary the supervision order to a non-custodial supervision order.
(1) If it appears to the Director of Public Prosecutions that a supervised person who is subject to a non-custodial supervision order is not complying or is not likely to comply with the supervision order and, because of that, the supervision order should be varied urgently, the Director of Public Prosecutions may make an urgent application to the court for an order varying the supervision order.
(2) In making an application under subsection (1):
(a) the Director of Public Prosecutions may give notice of the application to one or more of the persons specified in section 43ZD(2) and the notice he or she gives may be less than the 14 days required under that subsection; and
(b) the Director of Public Prosecutions may make the application orally by telephone or in writing by facsimile or any other available electronic means of communication.
(3) If the supervised person fails to appear at the hearing of the application, the court must issue a warrant for the apprehension and arrest of the supervised person.
(3A) The court may adjourn the hearing for the application if the court considers it appropriate to do so.
(3B) If the court adjourns the hearing under subsection (3A), the court may make interim orders for the supervised person (including, for example an order that the supervised person be remanded in custody in a custodial correctional facility or another place the court considers appropriate).
(3C) The court must not make an interim order under subsection (3B) remanding the supervised person in custody in a custodial correctional facility unless the court is satisfied there is no practical alternative given the circumstances of the supervised person.
(3D) To avoid doubt:
(a) the making of an interim order under subsection (3B) does not revoke the supervision order; and
(b) subject to a direction by the court – the supervision order continues to have effect while an interim order under subsection (3B) is in force.
(4) On hearing the application, the court may:
(a) confirm the non-custodial supervision order; or
(b) vary the conditions of the non-custodial supervision order; or
(c) vary the non-custodial supervision order to a custodial supervision order and impose the conditions on the custodial supervision order that the court considers appropriate.
(5) If the court makes an order under subsection (4)(c) varying the supervision order to a custodial supervision order:
(a) unless the term fixed under section 43ZG in respect of the supervision order has expired, that period continues to apply in respect of the custodial supervision order; or
(b) if the term referred to in paragraph (a) has expired – the court must fix the term it considers appropriate during which the supervision order as varied is to be in force and specify the term in the supervision order (and section 43ZG applies to and in relation to the supervision order as varied as if that term were a term fixed under section 43ZG(1)).
(1) If a member of the Police Force suspects on reasonable grounds that:
(a) a supervised person is failing or has failed to comply with the supervision order to which he or she is subject (including a supervision order that has just been varied);
(b) the safety of a supervised person is at risk unless the supervised person is apprehended; or
(c) the safety of the public is at risk if a supervised person is not apprehended,
the member may apprehend the supervised person.
(2) A supervised person who is apprehended under subsection (1) must be detained:
(a) if the supervised person is subject to a custodial supervision order – in the place where he or she is committed to custody under the supervision order; or
(b) if the supervised person is subject to a non-custodial supervision order – in an appropriate place (which would, if there is no practicable alternative in the circumstances, be a custodial correctional facility or a police station).
(3) If a supervised person who is apprehended under subsection (1) is subject to a non-custodial supervision order, an application for an order varying the non-custodial supervision order is to be made to the court under section 43ZD or 43ZE.
(1) When the court makes a supervision order, the court must fix a term in accordance with subsection (2), (3) or (4) that is appropriate for the offence concerned and specify the term in the order.
(2) Subject to subsections (3) and (4), the term fixed under subsection (1) is to be equivalent to the period of imprisonment or supervision (or aggregate period of imprisonment and supervision) that would, in the court's opinion, have been the appropriate sentence to impose on the supervised person if he or she had been found guilty of the offence charged.
(3) If:
(a) the offence charged carries a mandatory penalty of life imprisonment; or
(b) the court is of the view that life imprisonment would have been an appropriate penalty for the offence charged;
the court must fix the period it would have set as the non-parole period for the offence under the Sentencing Act 1995 if the supervised person had been found guilty of the offence charged as the term under subsection (1).
(4) If the supervised person was charged with the commission of multiple offences, the court must fix the term under subsection (1) by reference to the offence carrying the longest maximum period of imprisonment.
(4A) A reference in subsection (2) to a period of supervision is a reference to a period of custody or any other form of supervision of a person under a court order (including, for example, a home detention order) on the court finding the person guilty of an offence.
(4B) The court may decide the term fixed under subsection (1) is taken to have commenced from a specified time that was:
(a) before the making of the supervision order; and
(b) at or after the time the supervised person was first taken into custody for an offence because of which the court may make the supervision order.
(5) At least 3 months (but not more than 6 months) before the expiry of the term fixed under subsection (1) in respect of a supervision order, the court must conduct a review to determine whether to release the supervised person the subject of the supervision order from it.
(5A) The court may adjourn the proceedings for the review to a time that is after the expiry of the term fixed under subsection (1) if the court considers it appropriate to do so.
(5B) If the court adjourns the proceedings under subsection (5A):
(a) the court may make interim orders for the supervised person (including, for example, an order that the supervised person be remanded in custody in a custodial correctional facility or another place the court considers appropriate); and
(b) subject to a direction by the court – the supervision order continues to have effect until the completion of the review.
(5C) The court must not make an interim order under subsection (5B)(a) remanding the supervised person in custody in a custodial correctional facility unless the court is satisfied there is no practical alternative given the circumstances of the supervised person.
(6) On completing the review under subsection (5), unless the court considers that the safety of the supervised person or the public will or is likely to be seriously at risk if the supervised person is released, the court must release the supervised person unconditionally.
(7) If the court considers that the safety of the supervised person or the public will or is likely to be seriously at risk if the supervised person is released unconditionally, the court must:
(a) confirm the supervision order; or
(b) vary the conditions of the supervision order (including, if the supervision order is a custodial supervision order, the place of custody where the supervised person is detained); or
(c) if the supervision order is a non-custodial order – vary the supervision order to a custodial supervision order and impose the conditions on the order that the court considers appropriate; or
(d) if the supervision order is a custodial order – vary the supervision order to a non-custodial order and impose the conditions on the order that the court considers appropriate.
(1) After considering a report submitted by an appropriate person under section 43ZK, if the court considers it is appropriate, the court may conduct a review to determine whether the supervised person the subject of the report may be released from the supervision order.
(2) On completing the review of a custodial supervision order, the court must:
(a) vary the supervision order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order; or
(b) if the court is satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order:
(i) confirm the order; or
(ii) vary the conditions of the order, including the place of custody where the supervised person is detained.
(3) On completing the review of a non-custodial supervision order, the court may:
(a) confirm the order;
(b) vary the conditions of the order;
(c) vary the supervision order to a custodial supervision order and impose the conditions on the order the court considers appropriate; or
(d) revoke the order and release the supervised person unconditionally.
(1) Subject to subsection (2), a person who is or is likely to be the subject of a supervision order has a right to appear before the court at a hearing of an application for an order making, varying or revoking the supervision order or of a review of the supervision order under this Division.
(2) If the person who is or is likely to be the subject of the supervision order does not appear before the court, the court must satisfy itself that:
(a) the person has been informed of his or her right to appear but has elected not to appear; or
(b) appearing before the court would be detrimental to the person's health.
(3) Subsection (2) does not apply to the hearing of an urgent application for an order varying a non-custodial supervision order under section 43ZE.
(4) The Director of Public Prosecutions may appear before the court at a hearing referred to in subsection (1).
(4A) In addition, the CEO (Health) is entitled to appear at a hearing of an application for an order varying or revoking the supervision order, or of a review of the supervision order, for a person who is in custody in an appropriate place mentioned in section 43ZA(1)(a)(ii), including, for example, a resident of a secure care facility under the Disability Services Act 1993 .
(5) Also, the court may give leave to a person who it considers has a proper interest in the matter the subject of a hearing mentioned in subsection (1) to appear before the court at the hearing.
(6) A person who is entitled to appear before the court under this section is a party to the matter in which he or she appears and is entitled to be legally represented.
(1) If the court declares under Division 2 or 4 that an accused person is liable to supervision, the appropriate person must, within 30 days after the date of the declaration or the longer period (if any) agreed to by the court, prepare and submit a report to the court on the mental impairment, condition or disability of the accused person that is the reason he or she was found to be not guilty of the offence charged because of mental impairment or to be unfit to stand trial.
(2) A report referred to in subsection (1) is to contain:
(a) a diagnosis and prognosis of the accused person's mental impairment, condition or disability;
(b) details of the accused person's response to any treatment, therapy or counselling he or she is receiving or has received and any services that are being or have been provided to him or her; and
(c) a suggested treatment plan for managing the accused person's mental impairment, condition or disability.
(1) If the court makes a supervision order, the appropriate person must, at intervals of not more than 12 months, until the supervision order is revoked, prepare and submit a report to the court on the treatment and management of the supervised person's mental impairment, condition or disability.
(2) A report referred to in subsection (1) is to contain:
(a) details of the treatment, therapy or counselling that the supervised person has received, and the services that have been provided to the supervised person, since the supervision order was made or the last report was prepared (as the case may require); and
(b) details of any changes to the prognosis of the supervised person's mental impairment, condition or disability and to the plan for managing the mental impairment, condition or disability.
(1) At the time the court is considering whether to make, vary or revoke a supervision order in respect of an accused person or a supervised person, or whether to determine to release a supervised person from a supervision order, the victim of the offence concerned or the next of kin of the victim (who may be a deceased victim) may prepare and submit a report to the court setting out the views of the victim or next of kin concerning one or more of the following:
(a) the conduct of the accused person or supervised person;
(b) the impact of the accused person's or supervised person's conduct on the victim or the next of kin or any other member of the victim's family;
(c) if the court is considering whether to release a supervised person from a supervision order – the impact the supervised person's conduct could have on the victim or next of kin or any other members of the victim's family if the supervised person is released.
(2) The court must receive all reports made to it under subsection (1).
(3) The court may, on its own initiative if it considers it will assist in determining whether to make, vary or revoke a supervision order in respect of an accused person or a supervised person, or whether to release a supervised person from a supervision order, request one or more of the following reports:
(a) a report setting out the views of the next of kin of the accused person or supervised person and the impact of the accused person's or supervised person's conduct on the next of kin or other members of the accused person's or supervised person's family;
(b) if the accused person or supervised person is a member of an Aboriginal community – a report setting out the views of the members of the Aboriginal community.
(4) The court must consider all reports made to it under this section.
Division 7 Principles on which court is to act
In this Division:
"order" means:
(a) a declaration that an accused person is liable to supervision; or
(b) an order releasing an accused person unconditionally; or
(c) an interim order for the bail of an accused person; or
(d) an interim order providing for the custody of an accused person or supervised person; or
(e) an order making, varying or revoking a supervision order; or
(f) an order releasing a supervised person.
In determining whether to make an order under this Part, the court must apply the principle that restrictions on a supervised person's freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community.
(1) In determining whether to make an order under this Part, the court must have regard to the following matters:
(a) whether the accused person or supervised person concerned is likely to, or would if released be likely to, endanger himself or herself or another person because of his or her mental impairment, condition or disability;
(b) the need to protect people from danger;
(c) the nature of the mental impairment, condition or disability;
(d) the relationship between the mental impairment, condition or disability and the offending conduct;
(e) whether there are adequate resources available for the treatment and support of the supervised person in the community;
(f) whether the accused person or supervised person is complying or is likely to comply with the conditions of the supervision order;
(g) any other matters the court considers relevant.
(2) The court must not make an order under this Part releasing a supervised person from custody (whether conditionally or otherwise) or significantly reducing the supervision to which a supervised person is subject unless:
(a) the court has:
(i) obtained and considered 2 reports, each report being prepared by a person who is a psychiatrist or other expert (but the same person must not prepare both reports); and
(ii) considered the reports submitted to the court under sections 43ZJ and 43ZK and received by the court under section 43ZL, if any; and
(b) subject to subsections (3) and (4), the court is satisfied that each of the following persons was given reasonable notice of the proceedings concerned:
(i) the victim of the offence concerned;
(ii) if the victim concerned is deceased – the victim's next of kin;
(iia) the next of kin of the supervised person concerned;
(iii) if the supervised person concerned is a member of an Aboriginal community – the Aboriginal community.
(3) Notice is not required to be given to a person referred to in subsection (2)(b) if the person cannot be found after reasonable inquiry.
(4) Notice is not to be given to a person referred to in subsection (2)(b)(i) or (ii) who has given notice to the court that he or she does not wish to be notified of any hearings in relation to the supervised person concerned and has not withdrawn that notice.
If an accused person or supervised person is unable to instruct his or her legal counsel on questions relevant to an investigation or proceedings under this Part, the legal counsel may exercise an independent discretion and act as he or she reasonably believes to be the in the person's best interests.
(1) If an application is made to the court under this Part that might result in an order for the release from custody of a supervised person, the Minister must ensure that counselling services are available to the victim, next of kin of a deceased victim and next of kin of the supervised person.
(2) A person who, in the course of the provision of counselling services to a person referred to in subsection (1), discloses information about the supervised person concerned to another person does not, in doing so, contravene the law of the Territory or any code or rule of conduct or professional ethics and is taken not to have committed an offence against the law in force in the Territory because of the disclosure.
(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act as a person authorised for section 43ZA(2A).
(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.
(3) In this section:
"exercise", of a power, includes the purported exercise of the power.
"performance", of a function, includes the purported performance of the function.
The Administrator may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Part to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.
Part III Offences against public order
In this Division:
"seditious enterprise" means an enterprise undertaken in order to carry out a seditious intention.
"seditious intention" means an intention:
(a) to excite disaffection against the government or the Legislative Assembly or the administration of justice of or in the Territory;
(b) to excite any person to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Territory established by a law in force in the Territory; or
(c) to promote feelings of ill-will and hostility between different classes of persons so as to endanger the peace, order or good government of the Territory.
"seditious words" means words expressing a seditious intention.
Subject to section 48, any person who engages in or agrees or undertakes to engage in a seditious enterprise is guilty of a crime and is liable to imprisonment for 3 years or, upon being found guilty summarily, to imprisonment for one year.
Subject to section 48, any person who writes, prints, utters or publishes seditious words is guilty of a crime and is liable to imprisonment for 3 years or, upon being found guilty summarily, to imprisonment for one year.
(1) A crime defined by section 45 or 46 may be prosecuted either on indictment or, with the consent of the Director of Public Prosecutions and the accused person, summarily.
(2) A person cannot be found guilty of committing or of counselling or procuring the commission of a crime defined by section 45 or 46 upon the uncorroborated testimony of one witness.
A person shall not be guilty of a crime defined by section 45 or 46:
(a) for endeavouring in good faith to show that the Administrator is, or his advisors are, mistaken in any of his or their counsels, policies or actions;
(b) for pointing out in good faith errors or defects in the government, the legislation or the administration of justice of or in the Territory with a view to the reformation of those errors or defects;
(c) for exciting in good faith another person to attempt to procure by lawful means the alteration of any matter established by law in the Territory;
(d) for pointing out in good faith, in order to bring about its removal, a matter that is producing, or has a tendency to produce, feelings of ill-will or hostility between different classes of persons; or
(e) for doing anything in good faith in connection with an industrial dispute or an industrial matter.
Any person who:
(a) administers, or is present at and consents to the administering of, an oath or engagement in the nature of an oath purporting to bind the person who takes it:
(i) to commit an offence;
(ii) to be a member of an association, society or confederacy formed or maintained for the purpose of committing an offence;
(iii) to obey the orders or commands of a committee or body not lawfully constituted, or of a person not having authority by law, to give such orders or commands;
(iv) not to inform or give evidence against a person; or
(v) not to reveal or discover an association, society or confederacy formed or maintained for the purpose of committing an offence, or an offence that has been or is to be committed, or an unlawful oath or engagement that may have been administered or tendered to or taken by himself or any other person, or the import of any such oath or engagement; or
(b) takes such an oath or engagement, not being compelled to do so,
is guilty of a crime and is liable to imprisonment for 3 years.
In this Division:
"act of terrorism" means the use or threatened use of violence:
(a) to procure or attempt to procure:
(i) the alteration of;
(ii) the cessation of; or
(iii) the doing of,
any matter or thing established by a law of, or within the competence or power of, a legally constituted government or other political body (whether or not legally constituted) in the Territory, the Commonwealth or any other place;
(b) for the purpose of putting the public or a section of the public in fear; or
(c) for the purpose of preventing or dissuading the public or a section of the public from carrying out, either generally or at a particular place, an activity it is entitled to carry out.
"organization" means an association, society or confederacy.
"unlawful organization" means an organization that uses, threatens to use or advocates the use of unlawful violence in the Territory to achieve its ends.
"violence" means violence of a kind that causes, or is likely to cause, the death of, or serious harm to, a person.
(1) Any person who, knowing an organization to be an unlawful organization:
(a) belongs or professes to belong to it;
(b) solicits or invites financial or other support for it or knowingly makes or receives a contribution of money or other property to or for its resources; or
(c) arranges or assists in the arrangement or management of or addresses a meeting of 3 or more persons knowing that the meeting is to support or further the activities of that unlawful organization or is to be addressed by a person belonging or professing to belong to that unlawful organization,
is guilty of a crime and is liable to imprisonment for 2 years.
(2) The court by or before which a person is found guilty of a crime defined by this section may order the forfeiture to the Crown of any money or other property that, at the time of the offence, he had in his possession or under his control for the use or benefit of the unlawful organization.
Proof of the fact that a person has belonged to an unlawful organization for 28 days or was a member of any committee of it is evidence that he knew it to be an unlawful organization.
Any person who, knowing an organization to be an unlawful organization, in a public place, or in any other place with the intention that it can be seen by persons in a public place:
(a) wears an item of dress; or
(b) wears, carries or displays a sign or article,
in such a way or in such circumstances that it can reasonably be inferred he is a member or supporter of an unlawful organization, is guilty of an offence and is liable to imprisonment for 6 months.
Any person who commits an act of terrorism is guilty of a crime and is liable to imprisonment for life.
(1) Any person who obtains for himself or another or supplies anything with the intention that it be used, or knowing that it is intended to be used, for or in connection with the preparation or commission of an act of terrorism is guilty of a crime and is liable to imprisonment for 10 years.
(2) Any court by or before which a person is found guilty of a crime defined by this section may order the forfeiture to the Crown of any property that, at the time of the crime:
(a) he had in his possession or under his control; and
(b) he intended should be used for or in connection with the preparation or commission of an act of terrorism.
Division 3 Offences against the Executive and Legislative power
Any person who does an act with the intention of interfering with the free exercise by the Administrator or a Minister of the Crown of a duty or an authority of his office is guilty of a crime and is liable to imprisonment for 7 years.
Any person who, by force or deception, or by threat or intimidation of any kind, interferes with the free exercise by the Legislative Assembly of its authority is guilty of a crime and is liable to imprisonment for 7 years.
Any person who, directly or indirectly, by force, deception, threat or intimidation of any kind, influences a member of the Legislative Assembly in the exercise of his duty or authority as a member of, or induces him to absent himself from, the Legislative Assembly or a committee of the Legislative Assembly, is guilty of a crime and is liable to imprisonment for 7 years.
Any person who, in order to influence a member of the Legislative Assembly in the exercise of his duty or authority as a member, or in order to induce him to absent himself from the Legislative Assembly or a committee of the Legislative Assembly, gives, confers or procures, or promises or offers to give, confer or procure, property or a benefit of any kind to, upon or for the member or another, is guilty of a crime and is liable to imprisonment for 7 years.
Any person who, being a member of the Legislative Assembly, solicits, receives or obtains, or agrees to receive or obtain, property or a benefit of any kind for himself or another, upon the understanding that the exercise by the member of his duty or authority as a member shall be in any way influenced or affected, is guilty of a crime and is liable to imprisonment for 7 years.
Any person who intentionally:
(a) disturbs the Legislative Assembly while it is in session; or
(b) engages in conduct in the immediate view and presence of the Legislative Assembly while it is in session with the intention of interrupting its proceedings or impairing the respect due to its authority,
is guilty of a crime and is liable to imprisonment for 3 years.
Any person who, without lawful excuse, being armed with a firearm or other dangerous or offensive weapon, enters or is found within the precincts of the Legislative Assembly is guilty of a crime and is liable to imprisonment for 3 years.
Division 4 Unlawful assemblies: breaches of the peace
(1) When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.
(2) It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
(3) An assembly of 3 or more persons who assemble for the purpose of protecting the dwelling-house of any one of them against persons threatening to enter it in order to commit an offence therein is not an unlawful assembly.
(4) When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot and the persons assembled are said to be riotously assembled.
Any person who takes part in an unlawful assembly is guilty of a crime and is liable to imprisonment for one year.
Any person who takes part in a riot is guilty of an offence and is liable to imprisonment for 3 years.
(1) A person is guilty of an offence if:
(a) the person is one of 12 or more people who are riotously assembled; and
(b) a police officer orally orders those people to disperse immediately; and
(c) the person:
(i) fails to comply with the order as soon as the circumstances permit; and
(ii) continues to assemble with people riotously.
Maximum penalty: Imprisonment for 14 years.
(2) A person is guilty of an offence if:
(a) the person engages in conduct that involves a violent act; and
(b) the conduct results in the prevention of a police officer from orally ordering the immediate dispersal of 12 or more people who are riotously assembled; and
(c) one of the following subparagraphs applies:
(i) the person engages in the conduct intending or knowing that it involves a violent act and has the result mentioned in paragraph (b);
(ii) the person is reckless as to whether the conduct involves a violent act and has that result.
Maximum penalty: Imprisonment for 14 years.
(3) A person is guilty of an offence if:
(a) the person is one of 12 or more people who are riotously assembled; and
(b) a police officer is prevented from orally ordering the immediate dispersal of those people; and
(c) the person, knowing about the prevention of the making of the oral order, continues to assemble with people riotously.
Maximum penalty: Imprisonment for 14 years.
(4) A person is guilty of an offence if the person:
(a) is one of 12 or more people who are riotously assembled; and
(b) unlawfully damages property while the people are so assembled.
Maximum penalty: Imprisonment for 14 years.
(5) To avoid doubt, an offence against subsection (1), (2), (3) or (4), may be committed in private or public places.
(6) In this section:
"conduct that involves a violent act" includes:
(a) conduct capable of causing injury to a person or damage to property (whether or not it actually causes such injury or damage); and
(b) a threat to engage in such conduct.
Any person who goes armed in public without lawful occasion in such a manner as to cause fear to a person of reasonable firmness and courage is guilty of an offence and is liable to imprisonment for 3 years.
Any person who challenges another to a fight of such a nature that, if it should occur, death or serious harm is likely to result or attempts to provoke another to such a fight or attempts to provoke any person to challenge another to such a fight, is guilty of an offence and is liable to imprisonment for 3 years.
Division 5 Offences against political liberty
(1) Any person who by violence, or by threats or intimidation of any kind, hinders or interferes with the free exercise of any political right by another person is guilty of an offence and is liable to imprisonment for 2 years.
(2) If the offender is a public officer and commits the offence in abuse of his authority as such an officer he is liable to imprisonment for 3 years.
In this Division:
"act of piracy", see section 72A.
"pirate" means a person who commits an act of piracy.
(1) Subject to subsection (2), an act of piracy is any of the following acts on the high seas:
(a) an act that, if committed in the Territory, would constitute an offence against section 218(1);
(b) the boarding of a ship against the wishes or without the knowledge of the master for the purpose of committing on the ship an act that, if committed in the Territory, would constitute an offence against section 156, 181, 194, 195, 202, 208H, 208HA, 208HB, 241, 243 or 245;
(c) an act committed on a ship that, if committed in the Territory, would constitute an offence against section 156, 181, 194, 195, 202, 208H, 208HA, 208HB, 241, 243 or 245;
(d) the stealing of a ship;
(e) directly or indirectly taking control of a ship against the wishes of the master;
(f) the confining of the master of a ship against the master's will;
(g) an act of a person on board a ship intentionally disobeying a lawful direction of the master given for the purpose of ensuring the safety of the ship, the crew or the passengers.
(2) Neither of the following is an act of piracy :
(a) an act of war committed under the authority of the Commonwealth or the lawful government of a foreign state;
(b) the taking of control of a ship by a person against the wishes of the master if:
(i) the person is a member of the armed forces of, or is acting with the authority of, the Commonwealth or the lawful government of a foreign state; and
(ii) the master had control of the ship as a result of an act mentioned in subsection (1).
(3) In this section:
"master", of a ship, means the person for the time being in control of the ship, whether or not that control was lawfully obtained.
Any person who commits an act of piracy is guilty of an offence and is liable to imprisonment for 20 years; and a person who has committed an act of piracy out of the Territory and who comes into the Territory is, by so coming into the Territory, guilty of an offence and is liable to imprisonment for 20 years.
Any person who trades with or supplies ammunition, provisions or stores to a pirate knowing him to be a pirate is guilty of an offence and is liable to imprisonment for 5 years.
Any person who builds or fits out a ship with the intention that it shall be used or with the knowledge that it is intended to be used for or in connection with an act of piracy is guilty of an offence and is liable to imprisonment for 5 years.
Part IV Offences against the administration of law and justice and against public authority
Division 1 Disclosure of confidential information and corruption and abuse of office
Subdivision 1 Interpretation and preliminary matters
In this Part:
"benefit", see section 75B.
"improper", see section 75C.
"obtain "includes to get or receive.
(1) "Benefit" means a benefit of any kind, including a non-pecuniary benefit.
(2) For this Part:
(a) a benefit is taken to be requested by a person:
(i) whether the benefit is a current benefit or a promise of a future benefit; and
(ii) whether the benefit is to be received by the person or another person; and
(b) a benefit is taken to be obtained by a person:
(i) whether the benefit is a current benefit or a promise of a future benefit; and
(ii) whether the benefit is received by the person or another person; and
(c) a benefit is taken to be offered by a person to a public officer:
(i) whether the benefit is a current benefit or the promise of a future benefit; and
(ii) whether the benefit is to be received by the public officer or another person; and
(d) a benefit is taken to be given by a person to a public officer:
(i) whether the benefit is a current benefit or the promise of a future benefit; and
(ii) whether the benefit is received by the public officer or another person.
(1) A person's conduct is improper if the conduct, in the circumstances, warrants criminal sanction.
(2) The finder of fact must find the conduct improper unless:
(a) the finder of fact is satisfied that:
(i) the conduct is trivial; or
(ii) the conduct has caused only minimal damage to the public interest; and
(b) the finder of fact is satisfied that the conduct, in the circumstances, does not warrant criminal sanction.
(3) In deciding whether a person's conduct, in the circumstances, warrants criminal sanction, the finder of fact must have regard to the following matters:
(a) if the person is a public officer – whether the person behaved in a way reasonably expected of a public officer;
(b) if the person is not a public officer – whether the person behaved in a way reasonably expected of the person;
(c) whether the person acted in an honest and reasonable belief that the person was lawfully entitled to act in the manner the person acted in the conduct being considered;
(d) the seriousness of the conduct and any result of the conduct;
(e) whether the conduct occurred:
(i) as an isolated incident; or
(ii) as part of repeated similar conduct; or
(iii) as part of a course of conduct.
If, in any proceedings for an offence under this Part, the court considers that the offence is of a trivial or merely technical nature, the court may in its discretion dismiss the case .
(1) A person commits an offence if:
(a) the person:
(i) is a public officer who obtains information because of the officer's position; or
(ii) was a public officer who obtained information because of the person's position as a public officer; and
(b) the information is confidential information and the person has knowledge of that circumstance; and
(c) the person intentionally engages in conduct; and
(d) the conduct is improper; and
(e) the conduct results in the disclosure of the information and the person is reckless in relation to the result.
Maximum penalty: Imprisonment for 3 years.
(2) Strict liability applies to subsection (1)(a).
(3) Absolute liability applies to subsection (1)(d).
(4) A person commits an offence if:
(a) the person:
(i) is a public officer who obtains information because of the officer's position; or
(ii) was a public officer who obtained information because of the person's position as a public officer; and
(b) the information is confidential information and the person has knowledge of that circumstance; and
(c) the person intentionally engages in conduct; and
(d) the conduct is improper; and
(e) the conduct results in the disclosure of the information and the person is reckless in relation to the result; and
(f) the improper conduct is engaged in with the intention of gaining a benefit.
Maximum penalty: Imprisonment for 5 years.
(5) Strict liability applies to subsection (4)(a).
(6) Absolute liability applies to subsection (4)(d).
(1) A public officer commits an offence if:
(a) the officer intentionally requests or knowingly obtains a benefit; and
(b) the officer knows the benefit is:
(i) an inducement to influence the officer's performance of the officer's powers or functions; or
(ii) a reward for the officer having performed the officer's powers or functions in a particular way or for a particular result; and
(c) the conduct mentioned in paragraph (a) is improper.
Maximum penalty: Imprisonment for 10 years.
(2) Absolute liability applies to subsection (1)(c).
(3) A person commits an offence if:
(a) the person intentionally offers or gives a benefit to another person; and
(b) the person offered or given the benefit is a public officer and the person offering or giving the benefit is reckless in relation to that circumstance; and
(c) the person offering or giving the benefit does so with the intention that the benefit is:
(i) an inducement to influence the officer's performance of the officer's powers or functions; or
(ii) a reward for the person; and
(d) the conduct mentioned in paragraph (a) is improper.
Maximum penalty: Imprisonment for 10 years.
(4) Absolute liability applies to subsection (3)(d).
(1) A public officer commits an offence if:
(a) the officer intentionally requests or knowingly obtains a benefit; and
(b) the officer knows the benefit would tend to:
(i) be an inducement to influence the officer's performance of the officer's powers or functions; or
(ii) be a reward for the officer; and
(c) the conduct mentioned in paragraph (a) is improper.
Maximum penalty: Imprisonment for 5 years.
(2) Absolute liability applies to subsection (1)(c).
(3) A person commits an offence if:
(a) the person intentionally offers or gives a benefit to another person; and
(b) the person offered or given the benefit is a public officer and the person offering or giving the benefit is reckless in relation to that circumstance; and
(c) the person offering or giving the benefit knows the benefit would tend to:
(i) be an inducement to influence the officer's performance of the officer's powers or functions; or
(ii) be a reward for the officer.
(d) the conduct mentioned in paragraph (a) is improper.
Maximum penalty: Imprisonment for 5 years.
(4) Absolute liability applies to subsection (3)(d).
(1) A public officer who is a public sector employee commits an offence if:
(a) the officer knowingly holds a private interest; and
(b) the officer would be able to exercise the officer's duties or functions as an officer in a manner that substantially affects the private interest and the officer is reckless in relation to that circumstance; and
(c) the officer had a reasonable opportunity to disclose the private interest to an appropriate person; and
(d) the officer fails to disclose the private interest to an appropriate person and is reckless in relation to that failure; and
(e) the conduct mentioned in paragraph (d) is improper.
Maximum penalty: Imprisonment for 2 years.
(2) Strict liability applies to subsection (1)(c).
(3) Absolute liability applies to subsection (1)(e).
(4) A public officer commits an offence if:
(a) the officer knowingly holds a private interest; and
(b) the officer:
(i) intentionally exercises the officer's duties or functions as a public officer in a manner that materially affects the private interest; and
(ii) obtains a benefit as a result of the conduct mentioned in subparagraph (i); and
(iii) is reckless in relation to that result; and
(c) the officer fails to disclose the private interest to an appropriate person and is reckless in relation to that failure; and
(d) the conduct mentioned in paragraphs (b) and (c) is improper.
Maximum penalty: Imprisonment for 7 years.
Examples for subsection (4)(b)
(a) the officer influences the performance or management of, or influences the decision whether to enter into or terminate, a contract or agreement made on account of the public sector that affects the value of a business in which the officer is a partner; or
(b) the officer influences a decision to refuse a licence to a business that is a competitor with a business which owes the officer money.
(5) Absolute liability applies to subsection (4)(d).
(6) This section does not apply to a person who is a public officer by the sole reason of being a member, officer or employee of a public body mentioned in section 16(1)(l) of the Independent Commissioner Against Corruption Act 2017 .
(7) In this section:
"appropriate person" means one of the following:
(a) for a public officer who is a public sector employee – the Chief Executive Officer of the Agency in, or in relation to, which the public officer is employed or engaged;
(b) for a public officer who is not a public sector employee or a Chief Executive Officer – the Chief Executive Officer of the Agency in, or in relation to, which the public officer is employed or engaged;
(c) for a public officer who holds an office established under an Act and is not a public sector employee – the minister administering that Act;
(d) for a public officer mentioned in section 16(2)(f) of the Independent Commissioner Against Corruption Act 2017 – the person mentioned in section 16(2)(a) to (e) of that Act by whom, or on behalf of whom, the public officer is engaged;
(e) for a public officer who is a Chief Executive Officer of an Agency – the minister responsible for that Agency;
(f) for a minister other than the Chief Minister – the Chief Minister;
(g) for the Chief Minister – the Administrator;
(h) for a member of the Legislative Assembly other than the Speaker – the Speaker;
(i) for the Speaker – the Deputy Speaker;
(j) for a police officer other than the Commissioner of Police – the Commissioner of Police;
(k) for the Chief Justice – the next most senior Supreme Court Judge;
(l) for the Chief Judge – the Chief Justice;
(m) for any other Local Court Judge – the Chief Judge;
(n) for the President of the Civil and Administrative Tribunal (the Tribunal ) – the Chief Judge;
(o) for any member of the Tribunal who is a judicial officer – the Chief Judge;
(p) for any other member of the Tribunal – the President of the Tribunal;
(q) for the Territory Coroner – the Chief Judge;
(r) for the Deputy Coroner – the Territory Coroner;
(s) for a public officer who is an employee of a local government council other than the CEO (as defined in section 3 of the Local Government Act 2008 ) of that council – the CEO of that council;
(t) for the CEO of a local government council – the principal member (as mentioned in section 42 of the Local Government Act 2008 ) of that council;
(u) for a member of a local government council other than the principal member – the principal member;
(v) for the principal member of a local government council – the CEO of that council.
"private" interest means a legal or financial interest that is held directly or indirectly.
(1) A public officer commits an offence if:
(a) the officer:
(i) intentionally provides, certifies or approves a document that is false in a material particular; or
(ii) intentionally modifies a document so that it is false in a material particular; and
(b) the material particular mentioned in paragraph (a) relates to either of the following circumstances and the officer has knowledge of that circumstance:
(i) the expenditure of public money;
(ii) the rights of a person; and
(c) the conduct mentioned in paragraph (a) is improper.
(2) For subsection (1)(b), a material particular relates to the expenditure of public money if it relates to one or more of the following:
(a) remuneration payable, or claimed to be payable, to any person;
(b) payment of money;
(c) delivery of goods or services;
(d) records or documents made for any accounting purposes, financial purpose or other similar purpose.
Maximum penalty: Imprisonment for 3 years.
(3) Absolute liability applies to subsection (1)(c).
Note for section 80
If false information is provided for the purpose of gain to the public officer, the offence of false accounting under section 233 may be applicable.
(1) A public officer commits an offence if:
(a) the officer intentionally engages in conduct; and
(b) the conduct is intentionally arbitrary or an abuse of process; and
(c) the conduct is prejudicial to the rights of another person and the officer is reckless in relation to that circumstance; and
(d) the conduct is improper.
Maximum penalty: Imprisonment for 2 years.
(2) Absolute liability applies to subsection (1)(d).
(3) A public officer commits an offence if:
(a) the officer intentionally engages in conduct; and
(b) the conduct is intentionally arbitrary or an abuse of process; and
(c) the conduct is prejudicial to the rights of another person and the officer is reckless in relation to that circumstance; and
(d) the conduct is improper; and
(e) the conduct is engaged in with the intention of obtaining a benefit.
Maximum penalty: Imprisonment for 3 years.
(4) Absolute liability applies to subsection (3)(d).
Any person who, being duly appointed under any statute to be a surveyor or valuer for determining the compensation to be paid to any person for land compulsorily taken from him under the authority of any statute, or for injury done to any land under the authority of any statute:
(a) acts as such surveyor or valuer while he has, to his knowledge, an interest in the land in question; or
(b) executes unfaithfully, dishonestly or with partiality the duty of surveying the land or making a valuation of the land or of the extent of the injury,
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who:
(a) not being a justice of the peace, assumes to act as a justice of the peace; or
(b) without authority, assumes to act as a person having authority by law to administer an oath, witness an affidavit or declaration or to do any other act of a public nature that can only be done by persons authorized by law to do so; or
(c) represents himself to be a person authorized by law to sign a document testifying to the contents of any register or record kept by lawful authority, or testifying to any fact or event, and signs such document as being so authorized when he is not and knows he is not, in fact, so authorized,
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who:
(a) personates any person employed in the public service on an occasion when the latter is required to do any act or attend in any place by virtue of his employment; or
(b) falsely represents himself to be a person employed in the public service and assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment,
is guilty of an offence and is liable to imprisonment for 3 years.
(1) This section applies if, in a proceeding against a person charged with an offence against section 77(1) (the prosecuted offence ), the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed an offence against section 77(1); but
(b) is satisfied beyond reasonable doubt that the person committed any offence in this Division (an alternative offence ).
(2) The trier of fact may find the person not guilty of the prosecuted offence but guilty of the alternative offence.
Division 3 Corrupt and improper practices at elections
Any person who:
(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind, to an elector in order to induce him to vote in a particular manner or to refrain from voting at an election or on account of his having voted at an election; or
(b) by force or fraud prevents or obstructs the free exercise of the franchise of an elector, or by any such means compels or induces an elector to vote in a particular manner or to refrain from voting at an election,
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who:
(a) gives, confers or procures, or promises or offers to give or confer or to procure or attempt to procure, to, upon or for any person any property or benefit of any kind on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by an elector at an election in the capacity of an elector or in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election;
(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him at an election in the capacity of an elector;
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or
(d) advances or pays any money to or for the benefit of any other person with the intent that such money shall be applied for any of the purposes mentioned in paragraph (a), (b) or (c), or in discharge or repayment of money wholly or in part applied for any such purpose,
is guilty of an offence and is liable to imprisonment for 3 years.
(1) Any person found guilty of an offence against section 87 or 88 with respect to an election of the Legislative Assembly becomes incapable for 3 years from the date of the finding of guilt of voting at any such election or of holding any judicial office and, if he holds any such office, the office is vacated.
(2) He also becomes incapable for the like period of being elected to or of sitting in the Legislative Assembly; and, if at the time of the finding of guilt he is a member of it, his seat is vacated.
(3) Any person found guilty of such an offence committed with respect to a local government election becomes incapable, for 2 years from the date of the finding of guilt, of holding any local government office and, if he holds any such office, the office is vacated.
Any person who:
(a) being prohibited by law from voting at an election and knowing that he is so prohibited votes at the election;
(b) procures any person who is, and whom he knows to be, prohibited from voting at an election to vote at the election;
(c) before or during an election, and for the purpose of promoting or procuring the choice of any candidate at the election, knowingly publishes a false statement of the withdrawal of another candidate at the election;
(d) before or during an election, and for the purpose of affecting the return of a candidate at the election, knowingly publishes a false statement of fact respecting the personal character or conduct of the candidate;
(e) being a candidate at an election withdraws from being a candidate in consideration of a payment or promise of payment; or
(f) being a candidate or the agent of a candidate at an election corruptly procures any other person to withdraw from being a candidate at the election in consideration of any payment or promise of payment,
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who places in a ballot-box a ballot-paper that has not been lawfully handed to and marked by an elector is guilty of an offence and is liable to imprisonment for 7 years.
Division 4 Selling and trafficking in offices
Any person who:
(a) corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him or any other person with regard to the appointment or contemplated appointment of any person to any office or employment in the Public Sector, or with regard to any application by any person for employment in the Public Sector; or
(b) corruptly gives, confers or procures, or promises or offers to give or confer or to procure or attempt to procure, to, upon or for any person, any property or benefit of any kind on account of any such act or omission,
is guilty of an offence and is liable to imprisonment for 3 years.
Division 5 Offences relating to the administration of justice
(1) Any person who:
(a) being the holder of a judicial office, corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in his judicial capacity; or
(b) corruptly gives, confers or procures, or promises or offers to give or confer or to procure or attempt to procure, to, upon or for any person holding a judicial office, or to, upon or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person holding the judicial office,
is guilty of an offence and is liable to imprisonment for 14 years.
(2) In subsection (1), holder of a judicial office means a person who by himself or with another or others conducts judicial proceedings.
(3) A prosecution of an offence against subsection (1) cannot be begun except by the direction of a Crown Law Officer.
Any person who:
(a) being a justice of the peace not acting judicially, or being a person employed in the public service in any capacity not judicial for the prosecution, detention or punishment of offenders, corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him with a view to corrupt or improper interference with the due administration of justice, or the procurement or facilitation of the commission of any offence, or the protection of any offender or intending offender from detection or punishment; or
(b) corruptly gives, confers or procures, or promises or offers to give or confer or to procure or attempt to procure, to, upon or for any such person, or to, upon or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the justice of the peace or other person so employed,
is guilty of an offence and is liable to imprisonment for 14 years.
Any person who:
(a) attempts by menaces of any kind, or benefits or promises of benefit of any kind, or by other corrupt means, to influence any person, whether a particular person or not, in his conduct as a juror in any judicial proceedings, whether he has taken the oath as a juror or not; or
(b) threatens to do any injury or cause any detriment of any kind to any person on account of anything done by him as a juror in any judicial proceedings; or
(c) accepts any benefit or promise of benefit on account of anything to be done by him as a juror in any judicial proceedings, whether he has taken the oath as a juror or not, or on account of anything already done by him as a juror in any judicial proceedings,
is guilty of an offence and is liable to imprisonment for 7 years.
(1) Any person who in any judicial proceedings, or for the purpose of instituting any judicial proceedings, knowingly gives false testimony touching any matter that is material to any question then depending in the proceedings, or intended to be raised in the proceedings, is guilty of an offence that is called perjury.
(2) It is immaterial whether the testimony is given on oath or under any other sanction authorized by law.
(3) The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial if he assents to the forms and ceremonies actually used.
(4) It is immaterial whether the false testimony is given orally or in writing.
(5) It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place or not, if it actually acts as a court or tribunal in the proceedings in which the testimony is given.
(6) It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceedings or not.
(1) Any person who commits perjury is guilty of an offence and is liable to imprisonment for 14 years.
(2) If the offender commits the offence in order to procure the finding of guilt of another person for an offence punishable with imprisonment for life, he is liable to imprisonment for life.
A person cannot be found guilty of committing perjury or of counselling or procuring the commission of perjury upon the uncorroborated testimony of one witness.
Any person who, with intent to mislead in any judicial proceedings:
(a) fabricates evidence by any means other than perjury or counselling or procuring the commission of perjury; or
(b) knowingly makes use of such fabricated evidence,
is guilty of an offence and is liable to imprisonment for 7 years.
Any person who:
(a) gives, confers or procures, or promises or offers to give or confer or to procure or attempt to procure, any property or benefit of any kind to, upon or for any person upon any agreement or understanding that any person called or to be called as a witness in any judicial proceedings shall give false testimony or withhold true testimony;
(b) attempts by any other means to induce a person called or to be called as a witness in any judicial proceedings to give false testimony or to withhold true testimony; or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person upon any agreement or understanding that any person shall, as a witness in any judicial proceedings, give false testimony or withhold true testimony,
is guilty of an offence and is liable to imprisonment for 7 years.
Any person who practises any fraud or deceit on, or knowingly makes or exhibits any false statement, representation or writing to, any person called or to be called as a witness in any judicial proceedings with intent to affect the testimony of such person as a witness, is guilty of an offence and is liable to imprisonment for 3 years.
Any person who, knowing that any book, document, tape recording, photograph or other thing of any kind is or may be required in evidence in judicial proceedings, destroys it or renders it illegible or undecipherable or incapable of identification with intent thereby to prevent it from being used in evidence, is guilty of an offence and is liable to imprisonment for 3 years.
Any person who prevents or attempts to prevent any person whom he knows has been duly summoned to attend as a witness before any court or tribunal from attending as a witness, or from producing anything in evidence pursuant to a subpoena or summons, is guilty of an offence and is liable to imprisonment for 3 years.
(1) A person must not do any of the following with the intention of inducing a person who is, or may be, involved in a criminal investigation or judicial proceedings, to act or not to act in a way that might influence the outcome of the investigation or proceedings:
(a) stalk a person within the meaning of section 189;
(b) cause or procure any physical injury to a person or property;
(c) threaten or attempt to cause or procure any physical injury to a person or property;
(d) cause detriment of any kind to a person.
Fault elements:
The person:
(a) intentionally does an act mentioned in paragraph (a), (b), (c) or (d); and
(b) intends to induce a person to act or not to act in a way that might influence the outcome of a criminal investigation or judicial proceedings; and
(c) knows, or is reckless as to whether, the person is or may be involved in the investigation or proceedings.
Maximum penalty: Imprisonment for 7 years.
(2) A person must not do any of the following on account of anything said or done by a person involved in a criminal investigation or judicial proceedings in good faith in the conduct of the investigation or proceedings:
(a) stalk a person within the meaning of section 189;
(b) cause or procure any physical injury to a person or property;
(c) threaten or attempt to cause or procure any physical injury to a person or property;
(d) cause detriment of any kind to a person.
Fault elements:
The person:
(a) intentionally does an act mentioned in paragraph (a), (b), (c) or (d); and
(b) has knowledge of the thing said or done by a person involved in a criminal investigation or judicial proceedings in the conduct of the investigation or proceedings.
Maximum penalty: Imprisonment for 7 years.
(3) A person must not do any of the following with the intention of influencing the manner in which a public officer discharges or performs his or her official duties or functions:
(a) stalk a person within the meaning of section 189;
(b) cause or procure any physical injury to a person or property;
(c) threaten or attempt to cause or procure any physical injury to a person or property;
(d) cause detriment of any kind to a person.
Fault elements:
The person:
(a) intentionally does an act mentioned in paragraph (a), (b), (c) or (d); and
(b) intends to influence the manner in which a public officer discharges or performs his or her official duties or functions; and
(c) knows, or is reckless as to whether, the person is a public officer.
Maximum penalty: Imprisonment for 7 years.
(4) A person must not do any of the following on account of anything said or done by a public officer in good faith in the discharge or performance, or purported discharge or performance, of his or her official duties or functions:
(a) stalk a person within the meaning of section 189;
(b) cause or procure any physical injury to a person or property;
(c) threaten or attempt to cause or procure any physical injury to a person or property;
(d) cause detriment of any kind to a person.
Fault elements:
The person:
(a) intentionally does an act mentioned in paragraph (a), (b), (c) or (d); and
(b) has knowledge of the thing said or done by a public officer in good faith in the discharge or performance or purported discharge or performance of his or her official duties or functions.
Maximum penalty: Imprisonment for 7 years.
(5) For this section:
(a) a person is involved in a criminal investigation if the person is involved in such an investigation as a witness, victim or legal practitioner or is otherwise assisting police with their inquiries; and
(b) a person is involved in judicial proceedings , whether the proceedings are in progress or are proceedings that are to be, or may be, instituted at a later time, if the person is:
(i) a judicial officer or other officer at the proceedings; or
(ii) involved in the proceedings as a witness, juror (whether the person has taken the oath as a juror or not) or legal practitioner.
(6) In this section:
Territory instrumentality means:
(a) an Agency or instrumentality of the Territory; or
(b) any body (whether or not incorporated) that is established by or under an Act and:
(i) is comprised of persons, or has a governing body comprised of persons, a majority of whom are appointed by the Administrator, a minister or an Agency or instrumentality of the Territory; or
(ii) is subject to control or direction by a minister.
(1) Any person who asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal an indictable offence, or will abstain from, discontinue or delay a prosecution for an indictable offence, or will withhold any evidence thereof, is guilty of an offence.
(2) If the indictable offence is such that a person found guilty of it is liable to be sentenced to imprisonment for life, the offender is liable to imprisonment for 7 years.
(3) In any other case, the offender is liable to imprisonment for 3 years.
Any person who, having brought, or under pretence of bringing, an action against another person upon a penal statute in order to obtain from him a penalty for any offence committed or alleged to have been committed by him, compounds the action without the order or consent of the court in which the action is brought or is to be brought is guilty of an offence and is liable to imprisonment for one year.
Any person who, except as permitted by law, having arrested another, deliberately delays bringing him before a court to be dealt with according to law is guilty of an offence and is liable to imprisonment for 2 years.
Any person who, in the name of a fictitious plaintiff, or in the name of a real person, but without his authority, brings an action against another person upon a penal statute for the recovery of a penalty for any offence committed or alleged to have been committed by him is guilty of an offence and is liable to imprisonment for 2 years.
Any person who, without authority, or knowing the advertisement to be false in any material particular, inserts or causes to be inserted in the Gazette or in any newspaper an advertisement purporting to be published under the authority of any court or tribunal is guilty of an offence and is liable to imprisonment for 2 years.
Any person who attempts, in any way not specially defined by this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of an offence and is liable to imprisonment for 15 years.
Division 6 Escapes: rescues: obstructing officers of courts
Any person who by force rescues or attempts to rescue from lawful custody an offender under sentence for the offence of murder or terrorism, or a person committed into the custody of the Commissioner of Correctional Services on such a charge, is guilty of an offence and is liable to imprisonment for life.
Any person who:
(a) aids a person in escaping or attempting to escape from lawful custody, confinement or detention; or
(b) conveys anything or causes anything to be conveyed into a custodial correctional facility with intent to facilitate the escape of a prisoner,
is guilty of an offence and is liable to imprisonment for 7 years.
(1) Any person who:
(a) is a prisoner in lawful custody following his arrest or conviction for an offence; or
(aa) is in custody under a continuing detention order under the Serious Sex Offenders Act 2013 ; or
(b) is lawfully confined or detained otherwise than as referred to in paragraph (a);
and who escapes from such custody, confinement or detention, is guilty of an offence.
(2) If the offence upon which a person referred to in subsection (1)(a) has been arrested or convicted:
(a) is an indictable offence – the person is liable to imprisonment for 3 years; or
(b) is a summary offence – the person is liable to imprisonment for one year.
(2AA) A person who commits an offence against subsection (1)(aa) is liable to imprisonment for 3 years.
(2A) A person who commits an offence against subsection (1)(b) is liable to imprisonment for 12 months.
(3) The offender may be tried, found guilty and punished notwithstanding that at the time of his apprehension or trial the term of his original custody, confinement or detention has expired.
Any person who, being a correctional services officer or a police officer and being charged with the custody of a prisoner or a person under arrest upon a charge of an offence, permits him to escape from custody is guilty of an offence and is liable to imprisonment for 3 years.
Any person who harbours, maintains or employs a person who is, to his knowledge, an offender under sentence by any court of the Territory, the Commonwealth or a State or another Territory of the Commonwealth involving deprivation of liberty and unlawfully at large, is guilty of an offence and is liable to imprisonment for 2 years.
Any person who:
(a) rescues any person during his conveyance as a mentally ill person to a hospital or other institution for the mentally ill or to a custodial correctional facility, or rescues any person during his confinement as a mentally ill person in any such place;
(b) being in charge of a person during his conveyance as a mentally ill person to any such place permits him to escape from custody;
(c) being a superintendent of, or person employed in, any such place permits a person confined therein as a mentally ill person to escape therefrom; or
(d) conceals any such person as aforesaid who has, to his knowledge, been rescued during such conveyance or confinement or has, to his knowledge, escaped during such conveyance or from such confinement,
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who, when any property has been attached or taken under the process or authority of any court of justice, knowingly and with intent to hinder or defeat the attachment or process, receives, removes, retains, conceals or disposes of such property is guilty of an offence and is liable to imprisonment for 3 years.
Any person who obstructs or resists any person lawfully charged with the execution of an order or warrant of any court of justice is guilty of an offence and is liable to imprisonment for 3 years.
Division 7 Miscellaneous offences against public authority
Any person who, on any occasion on which a person making a statement touching any matter is required by law to make it on oath or under some sanction that may by law be substituted for an oath, or is required to verify it by solemn declaration, makes a statement touching such matter that, in any material particular, is to his knowledge false and verifies it on oath or under such other sanction or by solemn declaration, is guilty of an offence and is liable to imprisonment for 7 years.
Any person who, on any occasion on which he or she is permitted or required by law:
(a) to make a statutory declaration or an unattested declaration as provided for in the Oaths, Affidavits and Declarations Act 2010 ; or
(b) to make a statement or declaration of any other kind before any person authorised by law to permit it to be made before him or her;
makes such a declaration or statement that, in any material particular, is to his or her knowledge false, is guilty of an offence and is liable to imprisonment for 3 years.
A person cannot be found guilty of committing or counselling or procuring the commission of an offence against sections 118 and 119 upon the uncorroborated testimony of one witness.
Any person who in any manner obstructs or resists any public officer while engaged in the discharge or attempted discharge of the duties of his office under any statute, or obstructs or resists any person while engaged in the discharge or attempted discharge of any duty imposed on him by any statute, is guilty of an offence and is liable to imprisonment for 2 years.
Any person who, being employed in the public service or as an officer of any court or tribunal, perversely and without reasonable excuse omits or refuses to do any act that it is his duty to do by virtue of his employment is guilty of an offence and is liable to imprisonment for 2 years.
Any person who, having reasonable notice that he is required to assist any police officer in suppressing a riot, without reasonable excuse omits to do so, is guilty of an offence and is liable to imprisonment for one year.
Any person who, having reasonable notice that he is required to assist any police officer in arresting any person, or in preserving the peace, without reasonable excuse omits to do so, is guilty of an offence and is liable to imprisonment for one year.
Part V Acts injurious to the public in general
Division 1 Offences relating to religious worship
Any person who:
(a) by threats or force prevents or attempts to prevent any minister of religion from lawfully officiating in any place of religious worship, or from performing his duty in the lawful burial or disposal of human remains under the Burial and Cremation Act 2022 ;
(b) by threats or force obstructs or attempts to obstruct any minister of religion while so officiating or performing his duty; or
(c) assaults or, upon or under the pretence of executing any civil process, arrests any minister of religion who is engaged in or is, to the knowledge of the offender, about to engage in any of the offices or duties referred to in paragraph (a) or who is, to the knowledge of the offender, going to perform the same or returning from the performance thereof,
is guilty of an offence and is liable to imprisonment for 2 years.
Division 2 Child abuse material and indecent articles
(1) In this Division:
"article" includes any thing:
(a) that contains or embodies matter to be read or looked at;
(b) that is to be looked at;
(c) that is a record; or
(d) that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c),
but does not include:
(e) a film that is classified (other than as RC) under the Commonwealth Act;
(f) a publication that is classified Unrestricted, Category 1 restricted or Category 2 restricted under the Commonwealth Act;
(g) a computer game that is classified (other than as RC) under the Commonwealth Act; or
(h) a film, publication or computer game that is the subject of an exemption under Part 10 of the Classification of Publications, Films and Computer Games Act 1985 .
"child abuse material" means material that depicts, describes or represents, in a manner that is likely to cause offence to a reasonable adult, a person who is a child or who appears to be a child:
(a) engaging in sexual activity;
(b) in a sexual, offensive or demeaning context; or
(c) being subjected to torture, cruelty or abuse,
but does not include:
(d) a film, publication or computer game that is classified (other than as RC) under the Commonwealth Act; or
(e) a film, publication or computer game that is the subject of an exemption under Part X of the Classification of Publications, Films and Computer Games Act 1985 .
"Classification Board" means the Classification Board established under the Commonwealth Act.
"classified" means classified under the Commonwealth Act.
"Commonwealth Act" means the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
"computer game", film and publication have the same meaning as in the Commonwealth Act.
"indecent article" means an article that:
(a) promotes crime or violence, or incites or instructs in matters of crime or violence; or
(b) depicts, describes or represents, in a manner that is likely to cause offence to a reasonable adult:
(i) the use of violence or coercion to compel a person to participate in, or submit to, sexual conduct;
(ii) sexual conduct with or on the body of a dead person;
(iii) the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct;
(iv) bestiality;
(v) acts of torture or the infliction of extreme violence or extreme cruelty; or
(vi) a person (whether or not engaged in sexual activity) who is a child who has not attained the age of 16 years or who looks like a child who has not attained that age.
law enforcement agency has the same meaning as in the Criminal Records (Spent Convictions) Act 1992 .
"person" includes part of a person.
"pornographic or abusive performance" means any performance by a person:
(a) engaging in sexual activity;
(b) in a sexual, offensive or demeaning context; or
(c) being subject to torture, cruelty or abuse,
that is likely to cause offence to a reasonable adult.
"publish" includes:
(a) distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire;
(b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a); or
(c) print, photograph or make in any other manner (whether of the same or of a different kind or nature): for the purpose of doing such an act.
"record" means a gramophone record or a wire or tape, or a film, and any other thing of the same or of a different kind or nature, on which is recorded a sound or picture and from which, with the aid of a suitable apparatus, the sound or picture can be produced (whether or not it is in a distorted or altered form).
"sell" has the same meaning as in the Classification of Publications, Films and Computer Games Act 1985 .
"senior rank" means a rank of or above the rank of Commander.
(2) A reference in this Division to a classification in relation to a film, publication or computer game is a reference to its classification (or, as the case may be, that it is unclassified) under the Commonwealth Act.
(3) For this Division, the phrase material that depicts, describes or represents includes material that contains data from which text, visual images or sound can be generated.
(1) This section applies if any of the following things are seized by a police officer:
(a) child abuse material;
(b) an article that contains child abuse material;
(c) an article that a police officer of a senior rank reasonably believes contains child abuse material.
(2) A police officer of a senior rank may authorise the forfeiture and destruction by a police officer of the thing.
(3) Subsection (2) applies whether or not a person has been charged, or is to be charged with an offence in relation to the thing.
(4) The thing may be destroyed at the place at which it was forfeited or at any other place that a police officer of a senior rank thinks fit.
(5) If the operation of this section would, apart from this subsection, result in an acquisition of property from a person otherwise than on just terms:
(a) the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and
(b) a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.
(1) If an article that contains, or is believed to contain, child abuse material is forfeited by a police officer under section 125AB, a police officer of a senior rank may authorise a police officer to return the article to the owner of the article.
(2) The authorisation must not be given unless the police officer of a senior rank is satisfied the child abuse material has been removed from the article.
(1) A person commits an offence if:
(a) the person intentionally produces, sells, distributes or possesses, or offers or advertises for sale or distribution, material; and
(b) the material is child abuse material and the person is reckless in relation to that circumstance.
Maximum penalty:
(a) for an individual – imprisonment for 10 years; or
(b) for a body corporate – 10 000 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant:
(a) is a member or officer of a law enforcement agency or a court who has child abuse material in the member's or officer's possession in the exercise of a power or performance of a function conferred or imposed on the member or officer by or under an Act or law; or
(b) has child abuse material in the defendant's possession in the exercise of a power, or performance of a function, relating to the classification of the material that is conferred or imposed on the defendant by or under an Act or law; or
(c) has child abuse material in the defendant's possession for legitimate medical or health research purposes.
(3) In a prosecution of a person for an offence against subsection (1), each of the following is evidence that material was in the person's possession:
(a) proof that the material was in or at a place of which the person was the occupier;
(b) proof that the material was in or at a place, the management or control of which the person was concerned in.
(4) Subsection (3) does not apply to a person if the person neither knew nor had reason to suspect that the material was in or on that place.
(5) In proceedings for an offence against subsection (1), a Commonwealth evidentiary certificate is admissible in any court of competent jurisdiction and is evidence that the film, publication or computer game mentioned in the certificate is child abuse material.
(6) A court that finds a person guilty of an offence against subsection (1):
(a) must order the forfeiture and destruction of any child abuse material in respect of which the offence was committed; and
(b) may order the forfeiture and destruction of any other articles seized at the same time as the child abuse material in respect of which the offence was committed.
(7) In this section:
"Commonwealth evidentiary certificate" means a certificate issued under section 87 of the Commonwealth Act that:
(a) purports to be signed by the Director of the Classification Board or the Deputy Director of the Classification Board; and
(b) states that a film, publication or computer game is classified RC on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child (whether the person is engaged in sexual activity or not).
Note for section 125B
See also section 208JF.
(1) A person commits an offence if:
(a) the person intentionally publishes an article; and
(b) the article is indecent and the person is reckless in relation to that circumstance.
Maximum penalty:
(a) for an individual – imprisonment for 2 years; or
(b) for a body corporate – 175 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant:
(a) published the indecent article for the purposes of an application for classification under the Commonwealth Act; or
(b) is a member or officer of a law enforcement agency and published the indecent article in the exercise of a power conferred, or performance of a function imposed, on the member or officer by or under an Act or law.
(3) For this section, an article may be indecent even if part of it is not indecent.
A person commits an offence if:
(a) the person intentionally uses, offers or procures another person for the production of material or for a performance; and
(b) the other person is a child, or a person who appears to be a child, and the person is reckless in relation to that circumstance; and
(c) the material is child abuse material, or the performance is a pornographic or abusive performance, and the person is reckless in relation to that circumstance.
Maximum penalty:
(a) for an individual – imprisonment for 14 years; or
(b) for a body corporate – 15 000 penalty units.
(1) An executive officer of a body corporate commits an offence if the body corporate commits an offence against section 125B(1), 125C(1) or 125D (a relevant offence ).
Maximum penalty: The maximum penalty that may be imposed on an individual for the commission of the relevant offence.
(2) An offence against subsection (1) is an offence of absolute liability.
(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant:
(a) was not in a position to influence the conduct of the body corporate in relation to the commission of the relevant offence; or
(b) took reasonable steps to prevent the commission of the relevant offence; or
(c) did not know, and could not reasonably have been expected to know, that the relevant offence would be committed.
(4) The defendant has a legal burden of proof in relation to a matter mentioned in subsection (3).
(5) In deciding whether the defendant took (or failed to take) reasonable steps to prevent the commission of the relevant offence, a court must consider the following:
(a) any action the defendant took directed towards ensuring the following (to the extent the action is relevant to the commission of the relevant offence):
(i) the body corporate arranged regular professional assessments of the body corporate's compliance with the provision to which the relevant offence relates;
(ii) the body corporate implemented any appropriate recommendation arising from an assessment under subparagraph (i);
(iii) the body corporate's employees, agents and contractors had a reasonable knowledge and understanding of the requirement to comply with the provision to which the relevant offence relates;
(b) any action the defendant took when the defendant became aware that the relevant offence was, or could be, about to be committed.
(6) Subsection (5) does not limit the matters the court may consider.
(7) This section does not affect the liability of the body corporate.
(8) This section applies to an executive officer whether or not the body corporate is prosecuted for, or found guilty of, the relevant offence.
(9) Subsection (1) does not apply to an executive officer if the body corporate would have a defence to a prosecution for the relevant offence.
Note for subsection (9)
The defendant has an evidential burden in relation to the matters mentioned in subsection (9) (see section 43BU of the Criminal Code).
(10) In this section:
"executive officer", of a body corporate, means a director or other person who is concerned with, or takes part in, the management of the body corporate.
(1) This section applies to proceedings for:
(a) an offence against section 125B or 125D; or
(b) an offence against section 125C involving an article that is indecent by virtue of paragraph (b)(vi) of the definition of indecent article .
(2) For proceedings specified in subsection (1), the Court must be closed while the material that is the subject of the offence is on display.
Division 2A Offence relating to human remains
(1) A person commits an offence if:
(a) the person intentionally engages in conduct in relation to human remains, whether or not the remains are buried; and
(b) the conduct is an improper or indecent interference with, or an indignity to, the remains, according to the standards of ordinary people.
Maximum penalty: Imprisonment for 2 years.
(2) Absolute liability applies to subsection (1)(b).
(3) In a prosecution for an offence against subsection (1), the question of what is improper, indecent or an indignity is a matter for the trier of fact.
Division 3 Offences against public health
Any person who sells or exposes for sale for the food or drink of man, or has in his possession with intent to sell it for the food or drink of man, anything that he knows to be unfit for the food or drink of man is guilty of an offence and is liable to imprisonment for 3 years.
Division 4 Contamination of goods
(1) In this Division:
"contaminate", in relation to goods, includes:
(a) to interfere with the goods; and
(b) to make it appear that the goods have been contaminated or interfered with.
"goods" includes any substance:
(a) whether or not for human consumption;
(b) whether natural or manufactured; and
(c) whether or not incorporated or mixed with other goods.
(2) In this Division, a reference to economic loss caused through public awareness of the contamination of goods includes a reference to economic loss caused through:
(a) members of the public not purchasing or using those goods or similar goods; or
(b) steps taken to avoid public alarm or anxiety or to avoid harm to members of the public.
A person who contaminates goods with the intention of:
(a) causing public alarm or anxiety; or
(b) causing economic loss through public awareness of the contamination,
is guilty of an offence and liable to imprisonment for 10 years.
(1) A person who makes a threat that goods will be contaminated with the intention of:
(a) causing public alarm or anxiety; or
(b) causing economic loss through public awareness of the contamination,
is guilty of an offence and liable to imprisonment for 10 years.
(2) For the purposes of this section, a threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional.
(1) A person who makes a statement that the person believes to be false:
(a) with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated; and
(b) with the intention of thereby:
(i) causing public alarm or anxiety; or
(ii) causing economic loss through public awareness of the contamination,
is guilty of an offence and liable to imprisonment for 10 years.
(2) For the purposes of this section, making a statement includes conveying information by any means.
It is immaterial that the conduct of a person constituting an offence under this Division occurred outside the Territory, so long as the person intended by the conduct:
(a) to cause public alarm or anxiety in the Territory; or
(b) to cause economic loss in the Territory through public awareness of the contamination.
Division 5 Recruitment of child
(1) A person commits an offence if:
(a) the person is an adult; and
(b) the person intentionally recruits another person to carry out or assist in carrying out criminal activity; and
(c) the other person is a child and the person has knowledge of that circumstance; and
(d) the person is reckless as to whether the child carries out or assists in carrying out the criminal activity.
Maximum penalty: Imprisonment for 10 years.
(2) Absolute liability applies to subsection (1)(a).
(3) A person may be found guilty of an offence against subsection (1) even if:
(a) the criminal activity is not carried out; or
(b) the criminal activity is impossible to carry out; or
(c) the child is not prosecuted or found guilty of an offence.
(4) A person cannot be found guilty of more than one of the following offences for the same conduct:
(a) an offence against subsection (1);
(b) an offence referred to in section 12(2);
(c) an offence against section 43BI.
Notes for subsection (4)
1 Section 12(2) refers to the offence of counselling or procuring.
2 Section 43BI is the offence of inciting the commission of an offence.
(5) In this section:
"criminal activity" means conduct that constitutes an offence punishable by a maximum term of imprisonment of 1 year or more.
"recruit" includes counsel, procure, solicit, incite and induce.
Part VI Offences against the person and related matters
Division 1A Preliminary matters
Subdivision 1 Right of occupants etc. to safety from attack by intruders
It is expressly declared that it is the public policy of the Territory that occupants of dwelling-houses and commercial premises, and persons invited into those premises, have the right to enjoy absolute safety in the premises from attack by intruders.
In this Part:
"aggravated offence" means an offence against section 174C or 174D that is an aggravated offence under section 174G.
"distribute", for Division 7A, see section 208AA.
"image", for Division 7A, see section 208AA.
"intimate image", for Division 7A, see section 208AA.
"law enforcement officer" means:
(a) a police officer or a member of the police force or police service of any State; or
(b) a member of the Australian Federal Police; or
(c) a member of staff of the Australian Crime Commission.
For this Part, a person's conduct causes death or harm if it substantially contributes to the death or harm.
Division 1 Duties relating to the preservation of human life
It is the duty of every person having charge of a child under the age of 16 years or having charge of any person who is unable to withdraw himself from such charge by reason of age, sickness, unsoundness of mind, detention or other cause and who is unable to provide himself with the necessaries of life:
(a) to provide the necessaries of life for that child or other person; and
(b) to use reasonable care and take reasonable precautions to avoid or prevent danger to the life, safety or health of the child or other person and to take all reasonable action to rescue such child or other person from such danger.
It is the duty of every person who, except in the case of necessity, undertakes to administer medical treatment to another or to engage in any other conduct that is or may be dangerous to health and that requires special knowledge, skill, attention or caution to have the requisite knowledge or skill and to employ such knowledge, skill, attention and caution as is reasonable in the circumstances.
It is the duty of every person who manages, uses or has in his possession anything that when so managed, used or had in possession may, in the absence of reasonable care and reasonable precautions, endanger the life, safety or health of another to use reasonable care and take reasonable precautions to avoid such danger.
When a person undertakes to do any act, the omission of which is dangerous to human life or health, it is his duty to do that act.
A person who omits to perform any duty imposed upon him by this Division is held to have caused any consequences to the life or health of any person to whom he owes the duty by reason of such omission, but whether or not he is criminally responsible therefor is to be determined by the other provisions of this Code.
Division 2 Provision of rescue, medical treatment and other aid
Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of an offence and is liable to imprisonment for 7 years.
(1) A person who unlawfully assaults, obstructs or hinders another person:
(a) who is providing rescue, resuscitation, medical treatment, first aid or succour of any kind to a third person;
(b) who is taking action to prevent injury or further injury to a third person who is in immediate risk of injury or further injury; or
(c) who is taking action to prevent damage or further damage to property that is in immediate risk of damage or further damage,
is guilty of an offence and is liable to imprisonment for 5 years.
(2) If the person thereby endangers the life of or causes harm to the third person, the person is liable to imprisonment for 7 years.
Division 3 Homicide: suicide: concealment of birth
(1) A person is guilty of the offence of murder if:
(a) the person engages in conduct; and
(b) that conduct causes the death of another person; and
(c) the person intends to cause the death of, or serious harm to, that or any other person by that conduct.
(2) Section 43BF does not apply to the offence of murder.
Note for section 156
Under sections 158 and 159, murder may be reduced to manslaughter if the conduct causing the death concerned occurred under provocation or the defendant proves that the defendant's mental capacity was substantially impaired.
(1) A person who is guilty of the offence of murder is liable to imprisonment for life.
(2) The penalty mentioned in subsection (1) is mandatory.
(3) A person who is guilty of the offence of conspiracy to commit the offence of murder is liable to imprisonment for 14 years.
Notes for section 157
1. Under sections 53 and 53A of the Sentencing Act 1995 , a sentencing court must fix a non-parole period when sentencing an offender found guilty of murder.
2. Under section 82(3) of the Youth Justice Act 2005 , the Supreme Court may, despite this section, sentence a youth found guilty of murder to life imprisonment or a shorter period of detention or imprisonment as it considers appropriate.
(1) A person (the defendant ) who would, apart from this section, be guilty of murder must not be convicted of murder if the defence of provocation applies.
(2) The defence of provocation applies if:
(a) the conduct causing death was the result of the defendant's loss of self-control induced by conduct of the deceased towards or affecting the defendant; and
(b) the conduct of the deceased was such as could have induced an ordinary person to have so far lost self-control as to have formed an intent to kill or cause serious harm to the deceased.
(3) Grossly insulting words or gestures towards or affecting the defendant can be conduct of a kind that induces the defendant's loss of self-control.
(4) A defence of provocation may arise regardless of whether the conduct of the deceased occurred immediately before the conduct causing death or at an earlier time.
(5) However, conduct of the deceased consisting of a non-violent sexual advance or advances towards the defendant:
(a) is not, by itself, a sufficient basis for a defence of provocation; but
(b) may be taken into account together with other conduct of the deceased in deciding whether the defence has been established.
(6) For deciding whether the conduct causing death occurred under provocation, there is no rule of law that provocation is negatived if:
(a) there was not a reasonable proportion between the conduct causing death and the conduct of the deceased that induced the conduct causing death; or
(b) the conduct causing death did not occur suddenly; or
(c) the conduct causing death occurred with an intent to take life or cause serious harm.
(7) The defendant bears an evidential burden in relation to the defence of provocation.
Note for subsection (7)
Under section 43BR(2), the prosecution bears a legal burden of disproving a matter in relation to which the defendant has discharged an evidential burden of proof. The legal burden of proof on the prosecution must be discharged beyond reasonable doubt – see section 43BS(1).
(8) A defendant who would, apart from this section, be liable to be convicted of murder must be convicted of manslaughter instead.
(1) A person (the defendant ) who would, apart from this section, be guilty of murder must not be convicted of murder if:
(a) the defendant's mental capacity was substantially impaired at the time of the conduct causing death; and
(b) the impairment arose wholly or partly from an underlying condition; and
(c) the defendant should not, given the extent of the impairment, be convicted of murder.
(2) Expert and other evidence may be admissible to enable or assist the tribunal of fact to determine the extent of the defendant's impairment at the time of the conduct causing death.
(3) If the defendant's impairment is attributable in part to an underlying condition and in part to self-induced intoxication, then, for deciding whether a defence of diminished responsibility has been established, the impairment must be ignored so far as it was attributable to self-induced intoxication.
(4) The burden of establishing a defence of diminished responsibility is a legal burden and lies on the defence.
(5) A defendant who would, apart from this section, be liable to be convicted of murder must be convicted of manslaughter instead.
(6) In this section:
"mental capacity", of a defendant, means the defendant's capacity to:
(a) understand events; or
(b) judge whether his or her actions are right or wrong; or
(c) exercise self-control.
"underlying condition" means a pre-existing mental or physiological condition other than of a transitory kind.
A person is guilty of the offence of manslaughter if:
(a) the person engages in conduct; and
(b) that conduct causes the death of another person; and
(c) the person is reckless or negligent as to causing the death of that or any other person by the conduct.
A person who is guilty of the offence of manslaughter is liable to imprisonment for life.
(1) A person (the defendant ) is guilty of the offence of a violent act causing death if:
(a) the defendant engages in conduct involving a violent act to another person (the other person ); and
(b) that conduct causes the death of:
(i) the other person; or
(ii) any other person.
Maximum penalty: Imprisonment for 16 years.
(2) Strict liability applies to subsection (1)(b).
(3) The defendant is criminally responsible for the offence even if the other person consented to the conduct mentioned in subsection (1)(a).
(4) However, the defendant is not criminally responsible for the offence if:
(a) the conduct involving the violent act is engaged in by the defendant:
(i) for the purpose of benefiting the other person; or
(ii) as part of a socially acceptable function or activity; and
(b) having regard to the purpose, function or activity mentioned in paragraph (a), the conduct was reasonable.
(5) In this section:
"conduct involving a violent act "means conduct involving the direct application of force of a violent nature to a person, whether or not an offensive weapon is used in the application of the force.
Examples of the application of force of a violent nature
A blow, hit, kick, punch or strike.
(1) A person is guilty of an offence if the person:
(a) assists another person to kill or attempt to kill himself or herself; or
(b) encourages another person to kill or attempt to kill himself or herself.
Maximum penalty: Imprisonment for life.
(2) For a person to be guilty of an offence against subsection (1)(a):
(a) the person must have intended his or her conduct would assist the other person to commit suicide; and
(b) the other person commits or attempts to commit suicide and was assisted to do so by that conduct.
(3) For a person to be guilty of an offence against subsection (1)(b):
(a) the person must have intended his or her conduct would encourage the other person to commit suicide; and
(b) the other person commits or attempts to commit suicide and was encouraged to do so by that conduct.
(4) It is not an offence to attempt to commit an offence against this section.
A person is guilty of an offence if the person disposes of the dead body of a child (whether or not the child was born alive) with the intention of concealing the child's birth.
Maximum penalty: Imprisonment for 2 years.
Any person who:
(a) attempts unlawfully to kill another; or
(b) with intent unlawfully to kill another, does any act, or omits to do any act that it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life,
is guilty of an offence and is liable to imprisonment for life.
(1) Any person who, with intent to cause fear, makes, or causes any person to receive, a threat to kill any person which threat is of such a nature as to cause fear to any person of reasonable firmness and courage, is guilty of an offence and liable to imprisonment for 7 years.
(2) It is a defence to a charge of an offence against this section to prove that making such a threat or causing it to be received was reasonable by the standards of an ordinary person similarly circumstanced to the accused person.
Any person who, when a woman or girl is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, is guilty of an offence and is liable to imprisonment for life.
Division 3A Recklessly endangering life and serious harm, negligently causing serious harm and related offences involving vehicles and vessels
(1) For this Division, conduct that may give rise to a danger of death or serious harm includes exposing a person to the risk of catching a disease that may give rise to a danger of death or serious harm.
(2) For this Division, conduct gives rise to a danger of death or serious harm if it is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm.
(3) Conduct may give rise to a danger of death or serious harm whatever the statistical or arithmetical calculation of the degree of risk of death or serious harm involved.
(4) In the prosecution of an offence against Subdivision 2, it is not necessary to prove that a person was actually placed in danger of death or serious harm by the conduct concerned.
A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) that conduct gives rise to a danger of death to any person; and
(c) the person is reckless as to the danger of death to any person that arises from the conduct.
Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 14 years.
A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) that conduct gives rise to a danger of serious harm to any person; and
(c) the person is reckless as to the danger of serious harm to any person that arises from the conduct.
Maximum penalty: Imprisonment for 7 years or, for an aggravated offence, 10 years.
A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) that conduct causes serious harm to another person; and
(c) the person is negligent as to causing serious harm to the other person or any other person by the conduct.
Maximum penalty: Imprisonment for 10 years.
(1) A person is guilty of an offence if:
(a) the person drives a motor vehicle dangerously; and
(b) that conduct causes the death of any person.
Maximum penalty: Imprisonment for 10 years.
(2) A person is guilty of an offence if:
(a) the person drives a motor vehicle dangerously; and
(b) that conduct causes serious harm to any person.
Maximum penalty: Imprisonment for 7 years.
(3) For subsections (1)(a) and (2)(a), a person drives a motor vehicle dangerously if the person drives the vehicle:
(a) while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle; or
(b) at a speed that is dangerous to another person; or
(c) in a manner that is dangerous to another person.
(4) An offence against subsection (1) or (2) is an offence of strict liability.
(5) A person who is convicted or acquitted of an offence against subsection (1) or (2) is not liable to be convicted of another offence against this Code on the same facts or substantially the same facts.
(6) The trier of fact may find the person not guilty of an offence against subsection (1) but guilty of an offence against section 30B(1) of the Traffic Act 1987 if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed the offence against subsection (1); and
(b) is satisfied beyond reasonable doubt that the person committed an offence against section 30B(1) of the Traffic Act 1987 .
(7) The trier of fact may find the person not guilty of an offence against subsection (2) but guilty of an offence against section 30B(2) of the Traffic Act 1987 if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed the offence against subsection (2); and
(b) is satisfied beyond reasonable doubt that the person committed an offence against section 30B(2) of the Traffic Act 1987 .
(1) The driver of a vehicle is guilty of an offence if:
(a) the vehicle is involved in an incident that results in the death of, or serious harm to, a person; and
(b) the driver fails to do any of the following:
(i) stop the vehicle at the scene of the incident;
(ii) give any assistance to the person that is reasonable in the circumstances;
(iii) as soon as reasonably practicable after the incident or after giving the assistance mentioned in subparagraph (ii) – notify a representative of the Police Force of the following:
(A) that the incident has occurred;
(B) the location of the incident;
(C) that the driver was the driver of the vehicle involved in the incident;
(D) the driver's name;
(iv) comply with any reasonable direction given by a representative of the Police Force in relation to the incident.
Fault elements:
The driver knows, or is reckless as to whether or not:
(a) the vehicle is involved in an incident; and
(b) the incident results in the death of, or serious harm to, a person.
Maximum penalty:
(a) Imprisonment for 10 years if the incident results in the death of a person.
(b) Imprisonment for 7 years if the incident results in serious harm of a person.
(2) In this section:
"driver", of a vehicle, includes a person who controls the vehicle (for example, the rider of a motorcycle).
"representative of the Police Force" means:
(a) a police officer; or
(b) a public sector employee working in a communications centre operated by the Police Force of the Northern Territory.
"vehicle "means any form of transport that can be used on a road or track (for example, a car, trailer, bicycle, horse or horse drawn carriage).
(1) The driver of a vehicle commits an offence if:
(a) a police officer gives the driver a direction to stop the vehicle under a law in force in the Territory; and
(b) the driver fails to comply with the direction; and
(c) a police officer pursues the vehicle; and
(d) the driver drives the vehicle dangerously while it is being pursued.
Maximum penalty: Imprisonment for 5 years.
Examples for subsection (1)(a) of laws under which a direction to stop may be given
1 Section 119A of the Police Administration Act 1978 .
2 Section 29AAB of the Traffic Act 1987 .
(2) For subsection (1):
(a) a police officer may be pursuing a vehicle even if the officer is not travelling at the same speed as the vehicle; and
(b) it is irrelevant that the officer's pursuit is suspended or ends before the vehicle being pursued stops; and
(c) a driver drives a vehicle dangerously if the driver drives the vehicle:
(i) while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle; or
(ii) at a speed that is dangerous to another person; or
(iii) in a manner that is dangerous to another person.
(3) An offence against subsection (1) is an offence of strict liability.
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant believed, on reasonable grounds, that he or she was not given a direction to stop the vehicle by a police officer.
(5) The defendant has a legal burden of proof in relation to the matter mentioned in subsection (4).
(6) In this section:
"direction to stop", in relation to a vehicle, means any action taken by a police officer to indicate to the driver of the vehicle that the driver must stop the vehicle including, for example:
(a) the giving of hand signals or the display of signs; and
(b) if the officer is driving a vehicle – any of the following:
(i) the flashing of the vehicle's headlights;
(ii) the use of a lamp on the vehicle displaying intermittent red and blue flashes;
(iii) the sounding of an alarm, siren or other warning device from the vehicle.
"driver", see section 174FA(2).
"vehicle", see section 174FA(2).
(1) A person commits an offence if:
(a) the person navigates a vessel dangerously; and
(b) that conduct causes the death of another person.
Maximum penalty: Imprisonment for 10 years.
(2) A person commits an offence if:
(a) the person navigates a vessel dangerously; and
(b) that conduct causes serious harm to another person.
Maximum penalty: Imprisonment for 7 years.
(3) For subsections (1)(a) and (2)(a), a person navigates a vessel dangerously if the person navigates the vessel:
(a) while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vessel; or
(b) at a speed that is dangerous to another person; or
(c) in a manner that is dangerous to another person.
(4) An offence against subsection (1) or (2) is an offence of strict liability.
(5) A person who is convicted or acquitted of an offence against subsection (1) or (2) is not liable to be convicted of another offence against this Code on the same facts or substantially the same facts.
(6) In this section:
"navigate", in relation to a vessel, includes any of the following:
(a) steer, direct or manage the vessel;
(b) direct or manage the course of the vessel;
(c) change the movement or direction of the vessel.
Subdivision 3 Aggravated offences
The following are circumstances of aggravation for an offence committed against section 174C or 174D and a maximum penalty specified in the section for an aggravated offence applies if any such circumstance of aggravation applies to the offence:
(a) the offence was committed by the use or threatened use of an offensive weapon;
(b) the offence was committed against a public officer who was, at the time of the offence, acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer;
(c) the offence was committed against a person who was involved in any capacity in legal proceedings in connection with any conduct or future conduct of the person in respect of those proceedings;
(d) the offence was committed against a child under the age of 10 years;
(e) the offence was committed against a person in abuse of a position of trust;
(f) the offence was committed against a person in abuse of a position of authority.
(1) If the prosecution intends to prove an aggravated offence, the relevant circumstances of aggravation must be contained in the charge.
(2) In order to prove an aggravated offence, the prosecution must prove that the person who committed the offence intended or was reckless as to the circumstances of aggravation.
Division 4 Miscellaneous offences against the person
Any person who, by any means calculated to choke, suffocate or strangle and with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, renders or attempts to render any person incapable of resistance is guilty of an offence and is liable to imprisonment for life.
Any person who, with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, administers, or attempts to administer, any stupefying or overpowering drug or thing to any person is guilty of an offence and is liable to imprisonment for life.
(1) A person's (the victim 's) drink or food is spiked if:
(a) it contains an intoxicating substance that:
(i) the victim does not expect it to contain; and
(ii) a reasonable person in the victim's position would not expect it to contain; or
(b) it contains more of an intoxicating substance than:
(i) the victim expects it to contain; and
(ii) a reasonable person in the victim's position would expect it to contain.
(2) A person is guilty of an offence if the person:
(a) spikes another's drink or food; or
(b) gives to another, or causes another to be given or to consume, spiked drink or food.
Fault elements:
(a) knowledge that the victim does not know that the drink or food is spiked or recklessness as to whether the victim knows.
(b) an intention to do one or more of the following:
(i) to impair the victim's mental acuity and thus obtain an advantage from or over the victim;
(ii) to cause embarrassment or humiliation;
(iii) to cause harm (including unwanted intoxication).
Maximum penalty: Imprisonment for 2 years.
Any person who, with intent to disfigure or disable any person, or to cause serious harm to any person, or to resist or prevent the lawful arrest or detention of any person:
(a) causes any serious harm, or causes any other harm, by any means; or
(b) attempts in any manner to strike any person with any kind of projectile; or
(c) causes any explosive substance to explode; or
(d) sends or delivers any explosive substance or other dangerous or noxious thing to any person; or
(e) causes any such substance or thing to be taken or received by any person; or
(f) puts any corrosive fluid or any destructive or explosive substance in any place; or
(g) casts or throws any such fluid or substance at or upon any person or otherwise applies any such fluid or substance to the person of any person,
is guilty of an offence and is liable to imprisonment for life.
Any person who:
(a) prevents or obstructs any person who is on board or is escaping from a ship or aircraft that is in distress or wrecked in his endeavours to save his life; or
(b) obstructs any person in his endeavours to save the life of any person so situated,
is guilty of an offence and is liable to imprisonment for life.
Any person who, with intent to injure or to endanger the safety of any person travelling by railway or roadway, whether a particular person or not:
(a) deals with the railway or roadway, any railway engine or carriage or motor vehicle or with anything upon or near the railway or roadway in such a manner as to affect or endanger or be likely to affect or endanger the free and safe use of the railway or roadway or the safety of any such person;
(b) shows any light or signal or sign, or in any way deals with any existing light or signal or sign, upon or near the railway or roadway; or
(c) by an omission to do any act that it is his duty to do causes the safety of any such person to be endangered,
is guilty of an offence and is liable to imprisonment for life.
Any person who, with intent to injure or to endanger the safety of any person whilst he is on board any aircraft or ship, whether a particular person or not:
(a) deals with the aircraft or ship or with anything upon or near the aircraft or ship or with anything either directly or indirectly connected with the guidance, control or operation of the aircraft or ship, in such a manner as to affect or endanger or be likely to affect or endanger the free and safe use of the aircraft or ship or the safety of any such person; or
(b) by any omission to do any act that it is his duty to do causes the safety of any such person to be endangered,
is guilty of an offence and is liable to imprisonment for life.
(1) A person is guilty of an offence if:
(a) the person throws a thing, or directs a laser pointer, at a vehicle or vessel; and
(b) the act mentioned in paragraph (a) gives rise to a danger of harm to someone in or on the vehicle or vessel.
Fault elements:
The person:
(a) intentionally throws the thing or directs the pointer; and
(b) knows, or is reckless as to whether or not, the act gives rise to a danger of harm to someone in or on the vehicle or vessel.
Maximum penalty: Imprisonment for 4 years.
(2) Subsection (1) applies whether or not the vehicle or vessel is stationary and whether or not the thing or laser beam reaches the vehicle or vessel.
(3) In this section:
"laser pointer" means a hand-held battery-operated device that is:
(a) commonly known as a laser pointer; and
(b) designed or adapted to emit a laser beam with an accessible emission limit of greater than 1 mW.
"throwing" a thing includes dropping or propelling the thing in any way.
"vehicle" means any form of transport that can be used on a road or track (for example, a car, trailer, bicycle, horse or horse drawn carriage).
Any person who unlawfully causes serious harm to another is guilty of an offence and is liable to imprisonment for 14 years.
Any person who, with intent to cause any harm to another, puts any explosive substance in any place is guilty of an offence and is liable to imprisonment for 14 years.
Any person who, being charged with the duty of providing for another the necessaries of life, unlawfully fails to do so whereby the life of that other person is or is likely to be endangered or his health is or is likely to be permanently injured, is guilty of an offence and is liable to imprisonment for 7 years.
Any person who abandons or exposes a child under the age of 2 years whereby the life of such child is or is likely to be endangered, or his health is or is likely to be permanently injured, is guilty of an offence and is liable to imprisonment for 7 years.
(1) Any person who sets or places any spring-gun, man-trap or other device calculated to destroy human life or to inflict serious harm, or causes any such thing to be set or placed, in any place with the intent that it may kill or inflict serious harm upon a trespasser or other person coming in contact with it, or sets or places any such thing in any such place and in any such manner that it is likely to cause any such result, is guilty of an offence and is liable to imprisonment for 3 years.
(2) Any person who knowingly permits any such spring-gun, man-trap or other device that has been set or placed by another person in any such place and in any such manner that it is likely to cause any such result to continue so set or placed in any place that is then in, or afterwards comes into, his possession or occupation, is deemed to have set and placed the spring-gun, man-trap or device with the intent aforesaid.
(3) This section does not make it an offence to set any trap such as is usually set for the purpose of destroying vermin.
Any person who unlawfully causes harm to another is guilty of an offence and is liable to imprisonment for 5 years.
(1) A person commits an offence if:
(a) the person is in a domestic relationship with another person; and
(b) the person intentionally chokes, strangles or suffocates the other person; and
(c) the other person does not consent to the choking, strangling or suffocating and the person is reckless in relation to that circumstance.
Maximum penalty: Imprisonment for 5 years.
(2) Strict liability applies to subsection (1)(a).
(3) To avoid doubt, an offence against this section constitutes domestic violence under section 5 of the Domestic and Family Violence Act 2007 .
(4) In this section:
"chokes, strangles or suffocates", a person, includes the following:
(a) applies pressure, to any extent, to the person's neck;
(b) obstructs, to any extent, any part of the person's:
(i) respiratory system; or
(ii) accessory systems of respiration;
(c) interferes, to any extent, with the operation of the person's:
(i) respiratory system; or
(ii) accessory systems of respiration;
(d) impedes, to any extent, the person's respiration.
"domestic relationship", see section 9 of the Domestic and Family Violence Act 2007 .
Division 4A Female genital mutilation
In this Division:
"authorised professional" means a person registered under the Health Practitioner Regulation National Law (other than as a student) to practise in:
(a) the Aboriginal and Torres Strait Islander health practice profession; or
(b) the nursing profession; or
(c) the midwifery profession.
"female genital mutilation" means the excision, infibulation or any other mutilation of the whole or any part of the labia majora or labia minora or clitoris.
"gender reassignment procedure" means a surgical procedure to give a female, or a person whose sex is ambivalent, the genital appearance of a particular sex (whether male or female).
(1) A person who performs female genital mutilation on another person is guilty of an offence and is liable to imprisonment for 14 years.
(2) An offence is committed against this section even if one or more of the acts constituting the offence occurred outside the Territory if the person mutilated by or because of the acts is ordinarily resident in the Territory.
(3) It is not an offence against this section to perform a surgical operation if the operation:
(a) has a genuine therapeutic purpose and is performed by a medical practitioner or authorised professional; or
(b) is a gender reassignment procedure and is performed by a medical practitioner.
(4) A surgical operation does not have a genuine therapeutic purpose by virtue of the fact that it is performed as, or as part of, a cultural, religious or other social custom.
(1) A person who takes another person from the Territory, or arranges for another person to be taken from the Territory, with the intention of having female genital mutilation performed on that person is guilty of an offence and liable to imprisonment for 14 years.
(2) In proceedings for an offence against subsection (1), if it is proved that:
(a) the accused took another person, or arranged for another person to be taken, from the Territory; and
(b) female genital mutilation was performed on the person while outside the Territory,
it shall be presumed, until the contrary is proved, that the accused took the person, or arranged for the person to be taken, from the Territory with the intention of having female genital mutilation performed on the person.
It is not a defence to a charge of an offence against this Division that the person mutilated by or because of the acts alleged to have been committed:
(a) consented to the acts; and/or
(b) consented to being taken from the Territory,
or that a parent or guardian of the person so consented.
(1) In this Code "assault" means:
(a) the direct or indirect application of force to a person without his consent or with his consent if the consent is obtained by force or by means of menaces of any kind or by fear of harm or by means of false and fraudulent representations as to the nature of the act or by personation; or
(b) the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words,
other than the application of force:
(c) when rescuing or resuscitating a person or when giving any medical treatment or first aid reasonably needed by the person to whom it is given or when restraining a person who needs to be restrained for his own protection or benefit or when attempting to do any such act;
(d) in the course of a sporting activity where the force used is not in contravention of the rules of the game; or
(e) that is used for and is reasonably needed for the common intercourse of life.
"emergency worker" means any of the following:
(a) a member of the Northern Territory Fire and Rescue Service established under section 5(1) of the Fire and Emergency Act 1996 ;
(b) a member of the Northern Territory Emergency Service as defined in section 8 of the Emergency Management Act 2013 ;
(c) an ambulance officer or paramedic employed or engaged in providing ambulance services;
(d) a medical practitioner or a health practitioner, as defined in the Health Practitioner Regulation National Law:
(i) accompanying or assisting a person mentioned in paragraph (c); or
(ii) attending a situation in the absence or unavailability of a person mentioned in paragraph (c).
Note for definition emergency worker , paragraph (c)
Ambulance services are not limited to road services, and may (for example) include helicopter or fixed-wing aero-medical services.
(1) Any person who unlawfully assaults another is guilty of an offence and, if no greater punishment is provided, is liable to imprisonment for one year.
(2) If the person assaulted:
(a) suffers harm; or
(b) is a female and the offender is a male; or
(c) is under the age of 16 years and the offender is an adult; or
(d) is unable because of infirmity, age, physique, situation or other disability effectually to defend himself or to retaliate; or
(e) is a member of the Legislative Assembly, the House of Representatives or the Senate and the assault is committed because of such membership; or
(f) is assisting a public sector employee in carrying out the public sector employee's duties; or
(fa) is assisting a justice of the peace in carrying out the justice's functions; or
(g) is engaged in the lawful service of any court document or in the lawful execution of any process against any property or in making a lawful distress; or
(h) has done an act in the execution of any duty imposed on him by law and the assault is committed because of such act; or
(j) is assaulted in pursuance of any unlawful conspiracy; or
(ja) is assaulted by choking, suffocation or strangulation, as defined in section 186AA; or
(m) is threatened with a firearm or other dangerous or offensive weapon;
the offender is guilty of an offence and is liable to imprisonment for 5 years.
(1) A person who unlawfully assaults a worker who is working in the performance of his or her duties is guilty of an offence.
(2) The maximum penalty for the offence is as follows:
(a) if the victim suffers harm:
(i) if the person is found guilty on indictment – imprisonment for 7 years; or
(ii) if the person is found guilty summarily – imprisonment for 3 years;
(b) if the victim does not suffer harm:
(i) if the person is found guilty on indictment – imprisonment for 5 years; or
(ii) if the person is found guilty summarily – imprisonment for 2 years.
(3) A person is a worker for this section if he or she carries out employment related activities ( work ) in any lawful capacity, including work as any of the following:
(a) an employee;
(b) a contractor or subcontractor;
(c) an apprentice or trainee;
(d) a student gaining work experience;
(e) a volunteer;
(f) a self-employed person;
(g) a person appointed under a law in force in the Territory to carry out functions or to hold an office.
(4) However, the following are not workers for this section:
(a) a police officer;
(b) an emergency worker.
Note for subsection (4)
Section 189A applies in relation to assaults on police officers and emergency workers.
(1) Any person who unlawfully assaults a police officer or emergency worker in the execution of the officer's or worker's duty is guilty of an offence and is liable to imprisonment for 5 years.
(2) If the police officer or emergency worker assaulted:
(a) suffers harm, the offender is liable to imprisonment for 7 years; or
(ab) suffers harm and the assault includes spitting by the offender, the offender is liable to imprisonment for 10 years; or
(b) suffers serious harm, the offender is liable to imprisonment for 16 years.
(1) A person ( the offender ) stalks another person ("the victim") if the offender engages in conduct that includes repeated instances of or a combination of any of the following:
(a) following the victim or any other person;
(b) telephoning, sending electronic messages to, or otherwise contacting, the victim or another person;
(c) entering or loitering outside or near the victim's or another person's place of residence or of business or any other place frequented by the victim or the other person;
(d) interfering with property in the victim's or another person's possession (whether or not the offender has an interest in the property);
(e) giving offensive material to the victim or another person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
(f) keeping the victim or another person under surveillance;
(g) acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of another person,
with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of another person and the course of conduct engaged in actually did have that result.
(1A) For the purposes of this section, an offender has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of another person if the offender knows, or in the particular circumstances a reasonable person would have been aware, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear.
(2) A person who stalks another person is guilty of an offence and is liable:
(a) to imprisonment for 2 years; or
(b) where:
(i) the person's conduct contravened a condition of bail or an injunction or order imposed by a court (either under a law of the Commonwealth, the Territory, a State or another Territory of the Commonwealth); or
(ii) the person was, on any occasion to which the charge relates, in the possession of an offensive weapon,
to imprisonment for 5 years.
(1) Any person who unlawfully assaults the Administrator or a judge whilst he is engaged in the discharge of his official functions or because of anything done or omitted to be done by him in the exercise of his official functions, is guilty of an offence and is liable to imprisonment for 14 years.
"judge" means the following:
(a) a Judge or Associate Judge of the Supreme Court;
(b) a Local Court Judge.
Any person who, while on board an aircraft, unlawfully assaults a member of the crew of the aircraft or threatens such a member with any violence, injury or detriment of any kind to be caused to him, or any other person on the aircraft, by the offender or by any other person with the intention of affecting the performance by the member of his functions or duties in connection with the operation of the aircraft or with the intention of lessening his ability to perform those functions or duties, is guilty of an offence and is liable to imprisonment for 14 years.
Unless otherwise expressly provided, any person who unlawfully assaults a person with intent to commit an offence is guilty of an offence and is liable to imprisonment for 3 years.
Division 5A Assault with intent to steal
(1) In this Division:
"appropriates" means assumes the rights of the owner of the property and includes, if the person has come by the property without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
"depriving" means permanently depriving and appropriating or borrowing property without meaning the person to whom it belongs permanently to lose the property if the intention of the person appropriating or borrowing it is to treat the property as the person's own to dispose of (including to dispose of by lending or under a condition as to its return that the person may not be able to perform) regardless of the rights of the person to whom it belongs.
"steals" means unlawfully appropriates property of another with the intention of depriving that person of it whether or not at the time of the appropriation the person appropriating the property was willing to pay for it, but does not include the appropriation of property by a person with the reasonable belief that the property has been lost and the owner of the property cannot be discovered.
(2) A person cannot steal land or things forming part of the land and severed from it by the person or at the person's directions, except:
(a) if the person has legal authority to sell or dispose of land belonging to another person and the person appropriates the land or anything forming part of it – by dealing with it in breach of the confidence reposed in the person; or
(b) if the person is not in possession of the land and the person appropriates anything forming part of the land – by severing it or causing it to be severed, or after it has been severed; or
(c) if, being in possession of the land under a tenancy or holding over after a tenancy – the person appropriates the whole or part of any fixture or structure let to be used with the land.
(3) If property is subject to a trust, the persons to whom it belongs are to be regarded as including any person having a right to enforce the trust and an intention to defeat the trust is to be regarded as an intention to deprive any person having that right of the property.
(4) If a person ( person A ) receives property from or on account of another person ( person B ) and is under an obligation to person B to retain or deal with it or its proceeds in a particular way, the property or proceeds are to be regarded, as against person A, as belonging to person B until the obligation is discharged.
(5) If a person obtains property by another person's mistake and is under an obligation to make restoration, in whole or in part, of the property or its proceeds or its value, then, to the extent of that obligation, the property or proceeds are to be regarded, as against the person who has so obtained it, as belonging to the person entitled to restoration and an intention not to make restoration is to be regarded as an intention to deprive that person of the property or proceeds.
(6) Property of a corporation sole belongs to the corporation despite a vacancy in the corporation.
(1) Any person who assaults another person with intent to steal anything is guilty of an offence and is liable to imprisonment for 7 years.
(2) If the offender is armed with a firearm or any other dangerous or offensive weapon or is in company with one or more person or persons or if the assault causes harm, the offender is liable to imprisonment for 14 years.
(3) If the offender is armed with a firearm and immediately before, at or immediately after the assault the offender injures any person by discharging it, the offender is liable to imprisonment for life.
Division 6 Offences against liberty: kidnapping: abduction
(1) Any person who:
(a) with intent to extort or gain anything from or procure anything to be done or omitted to be done by a person by a demand containing threats of injury or detriment to be caused to a person, either by the offender or another person, if the demand is not complied with, takes or entices away or detains the person in respect of whom the threats are made; or
(b) receives, confines or detains the person in respect of whom the threats are made, knowing the person to have been so taken or enticed away or detained,
is guilty of an offence that is called kidnapping for ransom.
(2) Any person who commits the offence of kidnapping for ransom is liable to imprisonment for 20 years.
(3) If the person kidnapped has been set at liberty without having suffered serious harm, the offender is liable to imprisonment for 10 years.
Any person who takes or entices away or detains another with intent to compel that other person to work for him against his will is guilty of an offence and is liable to imprisonment for 7 years.
(1) Any person who confines or detains another in any place against his will, or otherwise deprives another of his personal liberty, is guilty of an offence and is liable to imprisonment for 7 years.
(2) It is lawful for a parent or guardian, or a person in the place of a parent or guardian, or for a school teacher, by way of correction, to impose such confinement or detention, or to cause such deprivation of personal liberty of a child, as is reasonable under the circumstances.
(3) A person is excused from criminal responsibility for an offence against this section if he believes, on reasonable grounds, that the person confined, detained or deprived of his personal liberty needs to be confined, detained or deprived of his personal liberty for his own protection or benefit.
Any person who:
(a) being required by law to give any certificate touching any matter by virtue whereof the liberty of any person may be affected, gives a certificate that, in any material particular, is to his knowledge false; or
(b) not being a person authorized by law to give such a certificate, gives such a certificate and represents himself to be a person authorized to give it,
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who:
(a) being required by law to keep any record touching any matter relating to any person in confinement, refuses or neglects to keep such record, or makes in such record an entry that, in any material particular, is to his knowledge false; or
(b) being required by law to give any information to any person touching any person in confinement, or to show to any person any person in confinement, or any place in which a person is confined:
(i) refuses or neglects to give such information, or to show such person or place, to any person to whom he is so required to give the information or show the person or place; or
(ii) gives to any person to whom he is so required to give it information touching any such matter that, in any material particular, is to his knowledge false,
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who detains or assumes the custody of a mentally ill person contrary to the provisions of the laws relating to mentally ill persons is guilty of an offence and is liable to imprisonment for 2 years.
Any person who threatens to do any injury, or cause any detriment, of any kind to another with intent to prevent or hinder that other person from doing any act that he is lawfully entitled to do, or with intent to compel him to do any act that he is lawfully entitled to abstain from doing, is guilty of an offence and is liable to imprisonment for 2 years.
Any person who takes or entices away or detains a child who is under the age of 16 years with the intention that he or another shall have sexual intercourse with the child or that the child shall be indecently dealt with or exposed to indecent behaviour, is guilty of an offence and is liable to imprisonment for 7 years.
(1) Any person who takes a child who is under the age of 16 years out of the custody or protection of that child's parent or other person having the lawful care or charge of the child and against the will of the parent or other person is guilty of an offence and is liable to imprisonment for 3 years.
(2) If the offender is an adult or if the child is under the age of 14 years, he is liable to imprisonment for 7 years.
(3) It is immaterial that the offender believes the child to be of or above the age of 16 years or 14 years.
(4) It is immaterial that the child was taken with the child's consent or at the child's suggestion.
Division 6A Sexual servitude and deceptive recruiting for sexual
services
(1) In this Division:
"sexual services" means the commercial use or display of the body of the person providing the services for the sexual gratification of others.
"sexual servitude" means the condition of a person who provides sexual services and who, because of the use of force or threat, is not free:
(a) to stop providing sexual services; or
(b) to leave the place or area where the person provides sexual services.
"threat" means:
(a) a threat of force;
(b) a threat to cause a person's deportation; or
(c) a threat of other detrimental action.
(2) For the purposes of this Division, the question whether, because of the use of force or a threat, a person is not free:
(a) to stop providing sexual services; or
(b) to leave the place or area where the person provides sexual services,
is to be decided according to whether a reasonable adult would consider, in the circumstances, that the person is not free to stop providing the services or to leave the place or area.
(1) A person who causes an adult to enter into or continue in sexual servitude is guilty of an offence and is liable to imprisonment for 15 years.
(2) A person who causes a child of or over the age of 12 years to enter into or continue in sexual servitude is guilty of an offence and is liable to imprisonment for 20 years.
(3) A person who causes a child under the age of 12 years to enter into or continue in sexual servitude is guilty of an offence and is liable to imprisonment for life.
(1) A person who conducts a business that involves the sexual servitude of adults is guilty of an offence and is liable to imprisonment for 15 years.
(2) A person who conducts a business that involves the sexual servitude of a child of or over the age of 12 years is guilty of an offence and is liable to imprisonment for 20 years.
(3) A person who conducts a business that involves the sexual servitude of a child under the age of 12 years is guilty of an offence and is liable to imprisonment for life.
(4) In this section, a reference to a person who conducts a business includes a reference to:
(a) a person who takes part in the management of the business;
(b) a person who exercises control or direction over the business; and
(c) a person who provides finance for the business.
(1) A person who, with the intention of inducing another person to enter into an engagement to provide sexual services, deceives that person about the fact that the engagement will involve the provision of sexual services is guilty of an offence and is liable to imprisonment for 10 years.
(2) If the person deceived by the offender is a child, the offender is liable to imprisonment for 15 years.
It is immaterial in relation to an offence against this Division committed with respect to a person who was at the time of the offence a child, or a child of a specified age, that the accused person:
(a) did not know that the person was a child or a child of a specified age; or
(b) believed that the person was an adult or a child of a different age.
Division 7 Criminal defamation
In this Division:
defamatory matter and publishes have the same meaning as in the civil law of defamation at the time of the publication complained of.
"unlawfully" means the publication would not be justified, privileged or excused by the civil law of defamation at the time of the publication complained of.
Any person who unlawfully publishes any defamatory matter:
(a) with intent to cause or that causes or is likely to cause a breach of the peace;
(b) with intent to cause loss;
(c) with intent to interfere with the free and informed exercise of a political right;
(d) with intent to prevent or deter a person from performing any duty imposed on him by law;
(e) with intent to prevent or deter any person from doing any act that he is lawfully entitled to do or to compel him to do any act that he is lawfully entitled to abstain from doing;
(f) with intent to prevent any lawful investigation or inquiry; or
(g) with intent to interfere with or to influence any judicial proceedings;
is guilty of an offence and is liable to imprisonment for 3 years.
Any person who publishes, or directly or indirectly threatens to publish, or directly or indirectly proposes to abstain from publishing, or directly or indirectly offers to prevent the publication of, any defamatory matter concerning another with intent to extort any property from such person or any other person, or with intent to induce any person to give, confer or obtain, or to attempt to obtain, to, upon or for any person any property or benefit of any kind, is guilty of an offence and is liable to imprisonment for 3 years.
In the prosecution of an offence against this Division, whether any particular matter is a matter of law or fact shall be determined by the civil law of defamation at the time of the publication complained of.
In the prosecution of an offence against this Division, the burden of proving all issues shall be upon the prosecution.
A prosecution of an offence against this Division cannot be begun except by the direction of a Crown Law Officer.
Division 7A Recording and distributing intimate images
In this Division:
"consent" means free and voluntary agreement.
"distribute", in relation to an image, includes engaging in the following conduct, whether manually, electronically, digitally or in any other manner:
(a) publish, exhibit, show, communicate, send, supply or transmit the image to another person;
(b) make the image available for viewing or access by another person.
"image" means a moving or still image in any form.
Examples for definition image
1 A file stored on a computer.
2 A photo stored on a phone.
"intimate image" means an image that depicts or has been altered to appear to depict:
(a) a person engaged in a sexual act of a kind not ordinarily seen in public; or
(b) a person in a manner or context that is sexual; or
(c) the genital or anal region of a person, whether bare or covered by underwear; or
(d) a breast, whether bare or covered by underwear, of a female person or of a transgender or intersex person who identifies as female.
(1) A person commits an offence if:
(a) the person intentionally records or captures an image of another person; and
(b) the image is an intimate image and the person is reckless in relation to that circumstance; and
(c) the other person did not consent to the recording or capturing of the image at the time it was recorded or captured and the person is reckless in relation to that circumstance.
Maximum penalty: Imprisonment for 3 years.
(2) It is a defence to a prosecution for an offence against subsection (1) if the image:
(a) was recorded or captured by a law enforcement officer acting reasonably in the performance of the officer's duty; or
(b) was recorded or captured for the purpose of reporting unlawful conduct by the other person to a law enforcement officer; or
(c) is of a person incapable of giving consent and was recorded or captured:
(i) for a scientific, medical or educational purpose; or
(ii) in other circumstances that a reasonable person would regard as acceptable.
Example for subsection (2)(c)(ii)
Taking a photograph or video of a naked newborn relative.
(3) A person under 16 years of age is taken to be incapable of consenting to the recording or capturing of an intimate image of the person.
(1) A person commits an offence if:
(a) the person intentionally distributes an image of another person; and
(b) the image is an intimate image and the person is reckless in relation to that circumstance; and
(c) the other person did not consent to the distribution and the person is reckless as to the lack of consent.
Maximum penalty: Imprisonment for 3 years.
(2) Subsection (1) does not apply to the distribution of an intimate image in the following circumstances:
(a) to only the person depicted in the image;
(b) by a law enforcement officer acting reasonably in the performance of the officer's duty;
(c) for the purpose of reporting unlawful conduct to a law enforcement officer;
(d) when required by a court or reasonably required for the purpose of a legal proceeding;
(e) for a scientific, medical or educational purpose;
(f) by a person solely in the person's capacity as an internet service provider, internet content host or a carriage service provider;
(g) of a child, or other person incapable of giving consent, in circumstances that a reasonable person would regard as acceptable.
Example for subsection (2)(e)
A doctor sends an image of a female patient's breast to another doctor for a second opinion about the patient's medical condition.
Example for subsection (2)(g)
Sharing a photograph or movie of a naked newborn relative.
(3) A person under the age of 16 years is taken to be incapable of consenting to the distribution of an intimate image of the person.
(4) A person who consents to the distribution of an intimate image on a particular occasion is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image on another occasion.
(5) A person who consents to the distribution of an intimate image to a particular person or in a particular way is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image to another person or in another way.
(6) A person who distributes an intimate image of the person is not, by reason only of that fact, to be regarded as having consented to any other distribution of the image.
(7) This section does not limit the grounds on which it may be established that a person does not consent to the distribution of an intimate image.
(1) A person commits an offence if the person:
(a) intentionally threatens to distribute an intimate image of another person; and
(b) intends the other person to fear that the threat would be carried out.
Maximum penalty: Imprisonment for 3 years.
(2) In a prosecution for an offence against this section:
(a) a threat may be made by any conduct, whether explicit, implicit, conditional or unconditional; and
(b) it is not necessary to prove that the other person actually feared that the threat would be carried out; and
(c) a person may be found guilty even if carrying out the threat is impossible.
Examples for subsection (2)(c)
1 The image does not exist.
2 Technical limitations prevent the person from distributing the image.
A prosecution of a child for an offence against this Division must not be commenced without the consent of the Director of Public Prosecutions.
(1) A court may order a person found guilty by the court of an offence under this Division to take reasonable action to remove, retract, recover, delete or destroy any intimate images related to the offence within a stated period.
(2) A person commits an offence if the person:
(a) knows the person is subject to an order under subsection (1); and
(b) intentionally engages in conduct; and
(c) the conduct results in non-compliance with the court order and the person is reckless in relation to that result.
Maximum penalty: Imprisonment for 2 years.
Division 8
Termination of pregnancy
(1) A person commits an offence if:
(a) the person intentionally:
(i) administers a drug to a woman or causes a drug to be taken by a woman; or
(ii) uses an instrument or other thing on a woman; and
(b) the person intends by that conduct to cause the termination of the woman's pregnancy; and
(c) the person is not a qualified person.
Maximum penalty: Imprisonment for 7 years.
(2) A person commits an offence if:
(a) the person intentionally procures for, or supplies to, a woman a drug, instrument or other thing; and
(b) the drug, instrument or other thing is intended to be used for the purpose of causing the termination of the woman's pregnancy and the person has knowledge of that circumstance; and
(c) the person is not a qualified person.
Maximum penalty: Imprisonment for 7 years.
(3) Strict liability applies to subsections (1)(c) and (2)(c).
(4) This section does not apply to a woman who consents to, or assists in, the performance of a termination on herself.
(5) For this section, each of the following, when acting in accordance with the Termination of Pregnancy Law Reform Act 2017 , is a qualified person :
(a) a medical practitioner;
(b) an authorised ATSI health practitioner;
(c) an authorised midwife;
(d) an authorised nurse;
(e) an authorised pharmacist.
(6) In this section:
"ATSI health practitioner "means a person registered under the Health Practitioner Regulation National Law to practise in the Aboriginal and Torres Strait Islander health practice profession (other than as a student).
"authorised", see section 4 of the Termination of Pregnancy Law Reform Act 2017 .
"midwife" means a person registered under the Health Practitioner Regulation National Law to practise in the midwifery profession (other than as a student).
"nurse" means a person registered under the Health Practitioner Regulation National Law to practise in the nursing profession (other than as a student).
"pharmacist "means a person registered under the Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student).
"woman", see section 4 of the Termination of Pregnancy Law Reform Act 2017 .
A person is not criminally responsible for an offence against this Part that is constituted by conduct that causes serious harm to another person or gives rise to a danger of death or serious harm to another person if:
(a) the conduct concerned is engaged in by the person for the purpose of benefiting the other person or pursuant to a socially acceptable function or activity; and
(b) having regard to the purpose, function or activity, the conduct was reasonable.
A person is not criminally responsible for an offence against this Part if:
(a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and
(b) the conduct of the person is reasonable in the circumstances for performing that duty.
A defendant who wishes to deny criminal responsibility by relying on a provision of this Division bears an evidential burden in relation to that matter.
In this Part:
"aggravated offence" means an offence against this Part to which a circumstance of aggravation mentioned in section 208P applies.
"article" includes any thing:
(a) that contains or embodies matter to be read or looked at; or
(b) that is to be looked at; or
(c) that is a record; or
(d) that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c).
"close family member", for Division 6, see section 208M.
"cognitive impairment", for Division 5, see section 208L.
"consent", see section 208GA.
"genitals "includes internal and external genitals and any surgically constructed genitals.
"historical offence" means any of the following offences:
(a) an offence against section 127, 128, 130, 132, 134, 188(2)(k), 192 or 192B as in force at any time before the commencement of this Part;
(b) an offence against section 129 or 135, as in force at any time before the commencement of the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 ;
(c) an offence against another repealed provision of an Act that is substantially similar to an offence mentioned in paragraph (a) or (b).
"indecent", see section 208GB(1).
"married" means married according to the law of Australia.
"part of the body" includes a surgically constructed part of the body.
"penis" includes a surgically constructed penis.
"position of authority", see section 208GC.
"senior rank", in relation to a police officer, means a rank of or above the rank of Commander.
"sexual intercourse" means any of the following:
(a) the penetration (to any extent) of the genitals or anus of a person with any part of the body of a person or with anything controlled by a person;
(b) the penetration (to any extent) of the mouth of a person with the penis of a person;
(c) cunnilingus;
(d) fellatio;
(e) the continuation of an act mentioned in paragraphs (a) to (d).
Note for definition sexual intercourse
Section 208PC provides a general exception for an offence against this Part for engaging in sexual intercourse in the course of a procedure carried out in good faith for medical or hygienic purposes.
"sexually involved with", see section 208GD.
"touches", see section 208GE.
(1) "Consent", to a sexual act, means free and voluntary agreement to the act.
(2) Circumstances in which a person does not consent to a sexual act include circumstances in which:
(a) the person submits to the act because of force or the fear of force to the person or to someone else; or
(b) the person submits to the act because the person is unlawfully detained; or
(c) the person submits to the act because of a false representation as to the nature or purpose of the act; or
(d) the person is asleep or unconscious or is so affected by alcohol, a drug or another substance as to be incapable of consenting; or
(e) the person is incapable of understanding the sexual nature of the act; or
(f) the person is mistaken about the sexual nature of the act; or
(g) the person is mistaken about the identity of another person involved in the act; or
(h) the person consents to the act with a condom, but another person involved in the act does not use or intentionally disrupts or removes the condom without the person's consent.
Example for subsection (2)(f)
The person mistakenly believes the act is for medical or hygienic purposes.
(3) In this section:
"sexual act "means an act that constitutes an element of an offence against this Part.
Note for section 208GA
Section 208PB also requires that the Judge direct a jury, in a relevant case, as to the factors to which the jury may have regard in determining whether or not there was consent.
(1) An act, including touching, an image or a thing is indecent if it is indecent according to the standards of ordinary people.
(2) In a prosecution for an offence against this Part, indecency or gross indecency is a matter for the trier of fact.
(1) A person is in a position of authority in relation to a person who is 16 or 17 years of age (the young person ) if, at the time of the conduct concerned:
(a) the person is a parent, step-parent, foster parent, legal guardian or legal custodian of the young person; or
(b) the person is a teacher at a school and the young person is enrolled at the school; or
(c) the person is an employer of the young person; or
(d) the person is a counsellor to the young person in a professional capacity; or
(e) the person is a health practitioner and the young person is the person's patient; or
(f) the person is a police officer, correctional services officer or community youth justice officer and the young person is in the person's care, custody, control or supervision as such an officer; or
(g) the person has authority over the young person because of the circumstances of the person's relationship with the young person, regardless of whether the authority is exercised lawfully; or
(h) the person has established a personal relationship with the young person in connection with the care, supervision or religious, sporting, musical or other instruction of the young person.
Example for subsection (1)(g)
The person supplies the young person with drugs.
Example for subsection (1)(h) of a person who has established a personal relationship in connection with the supervision of a young person
The person supervises the young person in the course of employment or training.
(2) In subsection (1):
"community youth justice officer", see section 5(1) of the Youth Justice Act 2005 .
"health practitioner" means a person registered under the Health Practitioner Regulation National Law to practise in a health profession (other than as a student).
A person is sexually involved with an animal if any of the following occur:
(a) the person inserts (to any extent) any part of the person's body or a thing controlled by the person into the genitals or anus of the animal;
(b) the person inserts (to any extent) the person's penis into the mouth of the animal;
(c) the person touches the animal's genitals with any part of the person's mouth;
(d) the animal's penis is inserted (to any extent) into the person's genitals, anus or mouth;
(e) any part of the animal's mouth touches the person's genitals.
Note for definition sexually involved with
Section 208PC provides a general exception for an offence against this Part for acts done in the course of a procedure carried out in good faith for veterinary or agricultural purposes.
A person touches another person if the person touches the other person with any part of the person's body or with anything controlled by the person.
Division 2 Sexual acts committed without consent
(1) A person commits an offence if:
(a) the person intentionally engages in sexual intercourse with another person; and
(b) the other person does not consent to the sexual intercourse and the person is reckless in relation to the other person's lack of consent.
Maximum penalty: Imprisonment for life.
(2) The offence of attempting to commit an offence against subsection (1) is punishable by imprisonment not exceeding:
(a) 20 years; or
(b) for an aggravated offence – 25 years.
Note for subsection (2)
For the offence of attempting to commit the offence, see section 43BF.
A person commits an offence if:
(a) the person intentionally compels, by force or otherwise, another person:
(i) to engage in sexual intercourse with someone else; or
(ii) to be sexually involved with an animal; or
(iii) to penetrate (to any extent) the other person's own genitals or anus; and
(b) the other person does not consent to engaging in the conduct and the person is reckless in relation to the other person's lack of consent.
Maximum penalty: Imprisonment for life.
(1) A person commits an offence if:
(a) the person intentionally performs an act on another person; and
(b) the act is grossly indecent; and
(c) the other person does not consent to the act being performed and the person is reckless in relation to the other person's lack of consent.
Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.
(2) A person commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct results in another person performing an act on the person and the person intends that result; and
(c) the act is grossly indecent; and
(d) the other person does not consent to performing the act and the person is reckless in relation to the other person's lack of consent.
Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.
(3) Absolute liability applies to subsections (1)(b) and (2)(c).
(1) A person commits an offence if:
(a) the person intentionally:
(i) touches another person; or
(ii) engages in an act directed at another person; and
(b) the touching or act is indecent; and
(c) the other person does not consent to the touching or act and the person is reckless in relation to the other person's lack of consent.
Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.
(2) A person commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct results in the person being touched by another person and the person intends that result; and
(c) the touching is indecent; and
(d) the other person does not consent to the touching and the person is reckless in relation to the other person's lack of consent.
Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.
(3) Absolute liability applies to subsections (1)(b) and (2)(c).
(1) A person commits an offence if:
(a) the person intentionally compels, by force or otherwise, another person:
(i) to touch any part of the other person's own body; or
(ii) to touch, or to be touched by, someone else or an animal; or
(iii) to engage in an act; and
(b) the touching or act is indecent; and
(c) the other person does not consent to the touching or act and the person is reckless in relation to the other person's lack of consent.
Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.
(2) Absolute liability applies to subsection (1)(b).
Despite section 43AK, for an offence against this Division:
(a) being reckless in relation to a lack of consent to sexual intercourse, engaging in conduct, the performance of an act, touching or an act includes not giving any thought to whether or not the other person consents to the sexual intercourse, engaging in the conduct, the performance of the act, the touching or the act; and
(b) the trier of fact must have regard to all the circumstances of the case including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, engaging in the conduct, the performance of the act, the touching or the act.
(1) Despite section 43BF(4), if recklessness is a fault element for a physical element of an offence against this Division, recklessness is also a fault element for the same physical element in relation to an attempt to commit that offence.
(2) The fault element of recklessness mentioned in subsection (1) includes the fault element as extended by section 208HE.
Division 3 Sexual acts committed against children under 16 years
(1) A person commits an offence if:
(a) the person intentionally engages in sexual intercourse with another person; and
(b) the other person is under 14 years of age.
Maximum penalty:
(a) if the other person is under 10 years of age – imprisonment for life; or
(b) otherwise – imprisonment for 20 years or, for an aggravated offence, 25 years.
(2) Absolute liability applies to subsection (1)(b).
(3) A person commits an offence if:
(a) the person intentionally engages in sexual intercourse with another person; and
(b) the other person is 14 or 15 years of age.
Maximum penalty: Imprisonment for 16 years or, for an aggravated offence, 20 years.
(4) Strict liability applies to subsection (3)(b).
(5) It is a defence to a prosecution for an offence against sub section
(3) if:
(a) the defendant is not more than 24 months older or younger than the person against whom the offence is alleged to have been committed; and
(b) the person consented to the sexual intercourse.
(1) A person commits an offence if:
(a) the person intentionally causes another person:
(i) to engage in sexual intercourse with someone else; or
(ii) to be sexually involved with an animal; or
(iii) to penetrate (to any extent) the other person's own genitals or anus; and
(b) the other person is under 14 years of age.
Maximum penalty:
(a) if the other person is under 10 years of age – imprisonment for life; or
(b) otherwise – imprisonment for 20 years or, for an aggravated offence, 25 years.
(2) Absolute liability applies to subsection (1)(b).
(3) A person commits an offence if:
(a) the person intentionally causes another person:
(i) to engage in sexual intercourse with someone else; or
(ii) to be sexually involved with an animal; or
(iii) to penetrate (to any extent) the other person's own genitals or anus; and
(b) the other person is 14 or 15 years of age.
Maximum penalty: Imprisonment for 16 years or, for an aggravated offence, 20 years.
(4) Strict liability applies to subsection (3)(b).
(1) A person commits an offence if:
(a) the person intentionally:
(i) performs an act on another person; or
(ii) causes or allows another person to perform an act on the person; and
(b) the act is grossly indecent; and
(c) the other person is under 14 years of age.
Maximum penalty: Imprisonment for 20 years or, for an aggravated offence, 25 years.
(2) A person commits an offence if:
(a) the person:
(i) intentionally performs an act on another person; or
(ii) intentionally causes or allows another person to perform an act on the person; and
(b) the act is grossly indecent; and
(c) the other person is 14 or 15 years of age.
Maximum penalty: Imprisonment for 16 years or, for an aggravated offence, 20 years.
(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).
(4) Strict liability applies to subsection (2)(c).
(1) A person commits an offence if:
(a) the person intentionally:
(i) touches another person; or
(ii) causes or allows another person to touch the person; or
(iii) engages in an act directed at another person; and
(b) the touching or act is indecent; and
(c) the other person is under 14 years of age.
Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.
(2) A person commits an offence if:
(a) the person intentionally:
(i) touches another person; or
(ii) causes or allows another person to touch the person; or
(iii) engages in an act directed at another person; and
(b) the touching or act is indecent; and
(c) the other person is 14 or 15 years of age.
Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.
(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).
(4) Strict liability applies to subsection (2)(c).
(1) A person commits an offence if:
(a) the person intentionally causes another person:
(i) to touch any part of the other person's own body; or
(ii) to touch, or to be touched by, someone else or an animal; or
(iii) to engage in an act; and
(b) the touching or act is indecent; and
(c) the other person is under 14 years of age.
Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.
(2) A person commits an offence if:
(a) the person intentionally causes another person:
(i) to touch any part of the other person's own body; or
(ii) to touch, or to be touched by, someone else or an animal; or
(iii) to engage in an act; and
(b) the touching or act is indecent; and
(c) the other person is 14 or 15 years of age.
Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.
(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).
(4) Strict liability applies to subsection (2)(c).
(1) A person commits an offence if:
(a) the person intentionally exposes another person to a thing or act; and
(b) the thing or act is indecent; and
(c) the other person is under 14 years of age.
Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.
(2) A person commits an offence if:
(a) the person intentionally exposes another person to a thing or act; and
(b) the thing or act is indecent; and
(c) the other person is 14 or 15 years of age.
Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.
(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).
(4) Strict liability applies to subsection (2)(c).
(5) It is a defence to a prosecution for an offence against subsection (1) or (2) if the defendant has a reasonable excuse.
(1) A person commits an offence if:
(a) the person intentionally records or captures a visual image of another person; and
(b) the image is indecent; and
(c) the other person is under 14 years of age.
Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.
(2) A person commits an offence if:
(a) the person intentionally records or captures a visual image of another person; and
(b) the image is indecent; and
(c) the other person is 14 or 15 years of age.
Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.
(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).
(4) Strict liability applies to subsection (2)(c).
(5) It is a defence to a prosecution for an offence against subsection (1) or (2) if the defendant has a reasonable excuse.
(6) In this section:
"image" means a moving or still image in any form.
Examples for definition image
1 A file stored on a computer.
2 A photo stored on a phone.
Note for section 208JF
See Part V, Division 2 for offences relating to child abuse material.
(1) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) the person does so with the intention of procuring the child to engage in sexual activity with the person or another person; and
(c) the child is under 14 years of age.
Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) the person does so with the intention of procuring the child to engage in sexual activity with the person or another person; and
(c) the child is 14 or 15 years of age.
Maximum penalty: Imprisonment for 12 years or, for an aggravated offence, 15 years.
(3) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a) and subsection (2)(b) is the fault element for the conduct in subsection (2)(a).
(4) Absolute liability applies to subsection (1)(c).
(5) Strict liability applies to subsection (2)(c).
(6) In this section:
"sexual activity" means sexual intercourse, an act of gross indecency, indecent touching or an indecent act.
(1) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and
(c) the child is someone:
(i) who is under 14 years of age; or
(ii) who the person believes is under 14 years of age.
Maximum penalty: Imprisonment for 12 years or, for an aggravated offence, 15 years.
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and
(c) the child is someone:
(i) who is 14 or 15 years of age; or
(ii) who the person believes is 14 or 15 years of age.
Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.
(3) A person commits an offence if:
(a) the person engages in conduct in relation to a contact of a person (the child ); and
(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and
(c) the child is someone:
(i) who is under 14 years of age; or
(ii) who the person believes is under 14 years of age.
Maximum penalty: Imprisonment for 12 years or, for an aggravated offence, 15 years.
(4) A person commits an offence if:
(a) the person engages in conduct in relation to a contact of a person (the child ); and
(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and
(c) the child is someone:
(i) who is 14 or 15 years of age; or
(ii) who the person believes is 14 or 15 years of age.
Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.
(5) For subsections (1) to (4):
(a) subsection (1)(b) is the fault element for the conduct in subsection (1)(a); and
(b) subsection (2)(b) is the fault element for the conduct in subsection (2)(a); and
(c) subsection (3)(b) is the fault element for the conduct in subsection (3)(a); and
(d) subsection (4)(b) is the fault element for the conduct in subsection (4)(a).
(6) Absolute liability applies to subsections (1)(c)(i) and (3)(c)(i).
(7) Strict liability applies to subsections (2)(c)(i) and (4)(c)(i).
(8) A person may be found guilty of an offence against subsection (1), (2), (3) or (4) even if:
(a) it is impossible for the sexual activity mentioned in the subsection to take place; or
(b) the child is a fictitious person represented to the accused person as a real person; or
(c) without limiting section 43CA, the accused person and the child or contact, as the case may be, were both outside the Territory at the time at which some or all of the conduct constituting the offence against the subsection occurred, so long as the intended sexual activity would occur in the Territory.
(9) In this section:
"contact", of a person, means any person who has a relationship of any type with the person.
Examples for definition contact , in relation to a child
A family member, babysitter, teacher or acquaintance of the child.
"sexual activity" means sexual intercourse, an act of gross indecency, indecent touching or an indecent act.
(1) A person commits an offence if:
(a) the person intentionally engages in conduct with another person on 2 or more occasions at any time on or after 1 July 1978; and
(b) the conduct constitutes sexual activity; and
(c) the other person is under 16 years of age.
Maximum penalty: See subsection (7).
(2) Absolute liability applies to subsection (1)(b) and (c).
(3) It is a defence to a prosecution for an offence against subsection (1) if:
(a) on each occasion on which the conduct occurred:
(i) the defendant believed, on reasonable grounds, that the other person was 16 years of age or older; and
(ii) the other person was 14 or 15 years of age; or
(b) engaging in the conduct with a person who is under 16 years of age would not have constituted an offence at the time at which the conduct occurred.
(4) To avoid doubt, the offence in subsection (1) applies in relation to conduct that occurred at any time on or after 1 July 1978.
(5) For a person to be found guilty of an offence against subsection (1), all the members of the jury or, if section 368 applies in relation to the trial, the number of jurors required under that section for a majority verdict, must be satisfied beyond reasonable doubt that the evidence shows that the defendant engaged in conduct constituting sexual activity with the other person on 2 or more occasions.
(6) For this section:
(a) it is immaterial whether the sexual activity was of the same nature on each occasion; and
(b) it is immaterial whether any of the sexual activity occurred outside the Territory, as long as at least one occasion of the sexual activity occurred in the Territory; and
(c) the prosecution is not required to allege or prove the particulars of any sexual activity that would be necessary if the activity were charged as a separate offence; and
(d) the jury is not required to be satisfied of the particulars of any sexual activity of which it would have to be satisfied if the activity were charged as a separate offence; and
(e) despite subsection (5), all the members of the jury or, if section 368 applies in relation to the trial, the number of jurors required under that section for a majority verdict, are not required to be satisfied about the same sexual activity.
(7) The maximum penalty for an offence against subsection (1) is as follows:
(a) for an offence involving occasions of sexual activity all of which occurred after the commencement – imprisonment for life;
(b) for an offence involving occasions of sexual activity that occurred both before and after the commencement:
(i) if 2 or more occasions occurred after the commencement – imprisonment for life; or
(ii) otherwise – the penalty specified in item 3 of the Table;
(c) for an offence involving occasions of sexual activity all of which occurred before the commencement:
(i) if the occasions occurred during only one of the periods specified in the Table – the penalty specified in the Table for that period; or
(ii) if the occasions occurred during 2 or more of the periods specified in the Table and 2 or more occasions occurred during any of those periods – the higher of the penalties specified in the Table for the periods in which 2 or more occasions occurred; or
(iii) if the occasions occurred during 2 or more of the periods specified in the Table and only one occasion occurred during each of those periods – the lower of the penalties specified in the Table for those periods.
Table
|
Item |
Period |
Penalty |
|
1 |
The period commencing on 1 July 1978 and ending on 31 May 1994 |
The penalty is the total of the maximum penalties for each historical offence constituted by the occasions of sexual activity that are found to have occurred during this period. |
|
2 |
The period commencing on 1 June 1994 and ending on 16 March 2004 |
The penalty is: (a) if the occasions of sexual activity that occurred constituted at least one historical offence for which the maximum penalty, at the time of the activity, exceeded 14 years – imprisonment for life; or (b) otherwise – imprisonment for 14 years. |
|
3 |
The period commencing on 17 March 2004 and ending immediately before the commencement |
The penalty is: (a) if the occasions of sexual activity that occurred constituted at least one historical offence for which the maximum penalty, at the time of the activity, exceeded 20 years – imprisonment for life; or (b) if the occasions of sexual activity that occurred constituted at least one offence against section 192B (as in force before the commencement) – imprisonment for life; or (c) otherwise – imprisonment for 20 years. |
(8) For the purposes of the Table, an occasion of sexual activity constitutes a historical offence if the sexual activity is the same as the act, omission or event that constitutes the historical offence, even if the particulars of the time and place at which the sexual activity took place are not sufficiently particularised to enable the defendant to be charged with or found guilty of the historical offence.
Note for subsection (8)
The mental element applying in relation to the historical offence is to be disregarded in determining whether the sexual activity constituted a historical offence.
(9) In this section:
"commencement "means the commencement of this section.
"sexual activity" means any of the following conduct, unless done in the course of a procedure carried out in good faith for medical or hygienic purposes:
(a) sexual intercourse;
(b) causing a person to be sexually involved with an animal;
(c) causing a person to penetrate (to any extent) the person's own genitals or anus;
(d) an act of gross indecency;
(e) indecent touching;
(f) an indecent act.
Note for definition sexual activity
Conduct amounting to an attempt to engage in any conduct specified in paragraphs (a) to (f) may be evidence of an attempt to commit an offence against subsection (1).
"Table" means the Table to subsection (7).
(1) A person may be charged in one indictment with:
(a) an offence against section 208JI(1); and
(b) one or more other offences against this Part or a historical offence alleged to have been committed by the person in relation to the other person in the course of the alleged repeated sexual abuse.
(2) A person charged in one indictment may be found guilty of and punished for any or all of the offences charged.
(3) A proceeding for an offence against section 208JI(1) must not be started without the consent of the Director of Public Prosecutions.
(4) Despite subsection (3), a person may be arrested for or charged with, or remanded in custody or on bail in connection with, an offence against section 208JI(1) before the consent of the Director of Public Prosecutions is given.
Consent of the person against whom the offence is alleged to have been committed is not a defence to an offence against this Division, except as mentioned in section 208J(5).
It is not a defence to an offence against this Division if the person charged with the offence believed the person:
(a) was married to the child concerned; or
(b) was the de facto partner of the child concerned.
(1) A proceeding for the following offences must not be started without the consent of the Director of Public Prosecutions:
(a) an offence against section 208JG(1) or (2) or 208JH(1), (2), (3) or (4) alleged to have been committed by a child;
(b) an offence against another provision of this Division, other than section 208JI(1), alleged to have been committed by a child under 14 years of age.
(2) Despite subsection (1), a child mentioned in subsection (1) may be arrested for or charged with, or remanded in custody or on bail in connection with, the offence before the necessary consent is given.
Division 4 Sexual acts committed against young persons by
persons in positions of authority
(1) A person commits an offence if:
(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and
(b) the person intentionally engages in sexual intercourse with the other person; and
(c) the other person is 16 or 17 years of age.
Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.
(2) Strict liability applies to subsection (1)(c).
(1) A person commits an offence if:
(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and
(b) the person intentionally causes the other person:
(i) to engage in sexual intercourse with someone else; or
(ii) to be sexually involved with an animal; or
(iii) to penetrate (to any extent) the other person's own genitals or anus; and
(c) the other person is 16 or 17 years of age.
Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.
(2) Strict liability applies to subsection (1)(c).
(1) A person commits an offence if:
(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and
(b) the person intentionally:
(i) performs an act on the other person; or
(ii) causes or allows the other person to perform an act on the person; and
(c) the act is grossly indecent; and
(d) the other person is 16 or 17 years of age.
Maximum penalty: Imprisonment for 7 years or, for an aggravated offence, 9 years.
(2) Absolute liability applies to subsection (1)(c).
(3) Strict liability applies to subsection (1)(d).
(1) A person commits an offence if:
(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and
(b) the person intentionally:
(i) touches the other person; or
(ii) causes or allows the other person to touch the person; or
(iii) engages in an act directed at the other person; and
(c) the touching or act is indecent; and
(d) the other person is 16 or 17 years of age.
Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.
(2) Absolute liability applies to subsection (1)(c).
(3) Strict liability applies to subsection (1)(d).
Consent of the person against whom the offence is alleged to have been committed is not a defence to an offence against this Division.
A person who is in a position of authority in relation to another person is not criminally responsible for an offence against this Division in relation to conduct involving the other person if, at the time of the conduct:
(a) the person was married to, or honestly believed on reasonable grounds that the person was married to, the other person; or
(b) the person was the de facto partner of, or honestly believed on reasonable grounds that the person was the de facto partner of, the other person.
Division 5 Sexual acts committed against cognitively impaired
persons by carers
For this Division, a person has a cognitive impairment if:
(a) the person has one of the following impairments:
(i) an intellectual disability;
(ii) a developmental disorder (including an autistic spectrum disorder);
(iii) a neurological disorder;
(iv) dementia;
(v) a severe mental illness;
(vi) a brain injury; and
(b) the impairment results in the person requiring supervision or social habilitation in connection with daily life activities.
(1) For this Division, a person is responsible for the care of a person with a cognitive impairment if the person provides care to that person, whether or not on a voluntary basis:
(a) at a facility at which persons with a cognitive impairment are detained, reside or attend; or
(b) at the home of that person as part of a service or program under which the operator of a facility mentioned in paragraph (a), or another government or community organisation or service provider, provides care to persons with a cognitive impairment.
(2) In subsection (1):
"care" includes health care, education and supervision.
(1) A person commits an offence if the person:
(a) is responsible for the care of a person with a cognitive impairment; and
(b) intentionally engages in sexual intercourse with the person with a cognitive impairment.
Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.
(2) Strict liability applies to subsection (1)(a).
(1) A person commits an offence if the person:
(a) is responsible for the care of a person with a cognitive impairment; and
(b) intentionally causes the person with a cognitive impairment:
(i) to engage in sexual intercourse with someone else; or
(ii) to be sexually involved with an animal; or
(iii) to penetrate (to any extent) the other person's own genitals or anus.
Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.
(2) Strict liability applies to subsection (1)(a).
(1) A person commits an offence if:
(a) the person is responsible for the care of a person with a cognitive impairment; and
(b) the person intentionally:
(i) performs an act on the person with a cognitive impairment; or
(ii) causes or allows the person with a cognitive impairment to perform an act on the person; and
(c) the act is grossly indecent.
Maximum penalty: Imprisonment for 7 years or, for an aggravated offence, 9 years.
(2) Strict liability applies to subsection (1)(a).
(3) Absolute liability applies to subsection (1)(c).
(1) A person commits an offence if:
(a) the person is responsible for the care of a person with a cognitive impairment; and
(b) the person intentionally:
(i) touches the person with a cognitive impairment; or
(ii) causes or allows the person with a cognitive impairment to touch the person; or
(iii) engages in an act directed at the person with a cognitive impairment; and
(c) the touching or act is indecent.
Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.
(2) Strict liability applies to subsection (1)(a).
(3) Absolute liability applies to subsection (1)(c).
(1) Consent of the person with a cognitive impairment concerned is not a defence to an offence against this Division, except as provided by subsection (2).
(2) A person who is responsible for the care of a person with a cognitive impairment is not criminally responsible for an offence against this Division in relation to conduct if, at the time of the conduct:
(a) the person with a cognitive impairment consented to the conduct; and
(b) the giving of the consent was not unduly influenced by the fact that the person was responsible for the care of the person with a cognitive impairment.
A person who is responsible for the care of a person with a cognitive impairment is not criminally responsible for an offence against this Division in relation to conduct if, at the time of the conduct:
(a) the person was married to, or honestly believed on reasonable grounds that the person was married to, the person with a cognitive impairment; or
(b) the person was the de facto partner of, or honestly believed on reasonable grounds that the person was the de facto partner of, the person with a cognitive impairment.
Division 6 Sexual acts committed against close family members
A close family member of a person is someone who, from birth and not from marriage or adoption, is a grandparent, parent, sibling (including a half-brother or half-sister), child or grandchild of the person.
A person commits an offence if:
(a) the person intentionally engages in sexual intercourse with another person; and
(b) the other person is a close family member of the person and the person has knowledge of that circumstance.
Maximum penalty: Imprisonment for 14 years.
Consent of the close family member concerned is not a defence to an offence against section 208MA.
A person is not criminally responsible for an offence against section 208MA if a close family member compelled, by force or otherwise, the person to engage in the conduct mentioned in section 208MA(a).
Division 7 Sexual acts committed against animal or in public
A person commits an offence if the person is intentionally sexually involved with an animal.
Maximum penalty: Imprisonment for 7 years.
(1) A person commits an offence if:
(a) the person intentionally masturbates; and
(b) the conduct occurs in public or in a place that is visible to the public.
Maximum penalty: Imprisonment for 2 years.
(2) Strict liability applies to subsection (1)(b).
(1) The following are circumstances of aggravation for an offence committed against this Part, and a maximum penalty specified in this Part for an aggravated offence applies if a circumstance of aggravation applies to the offence:
(a) the offence was committed during torture;
(b) the offence was committed by the use or threatened use of an offensive weapon;
(c) the offence was committed by a person in the company of another person;
(d) the offence was committed in circumstances that involved the victim being caused serious harm or being threatened with serious harm or death;
(e) the offence was committed against a child under 16 years of age, except in the case of an offence against Division 3;
(f) the offence was committed against a person in abuse of a position of trust, except in the case of an offence against Division 4 or 5;
(g) the offence was committed against a person in abuse of a position of authority, except in the case of an offence against Division 4.
(2) For subsection (1)(a), the offence was committed during torture if the person who committed it deliberately and systematically, over a period, inflicted severe pain on the person against whom it was committed.
(1) If the prosecution intends to prove an aggravated offence, the relevant circumstance of aggravation must be contained in the charge.
(2) In order to prove an aggravated offence, the prosecution must prove that the person who committed the offence was reckless in relation to the circumstance of aggravation.
(1) In a proceeding for an offence against this Part, the Judge must, in an appropriate case, direct the jury that a person must not be regarded as having consented to a particular sexual act merely because:
(a) the person did not say or do anything to indicate that the person did not consent; or
(b) the person did not protest or physically resist; or
(c) the person did not sustain physical injury; or
(d) during the period or on the occasion when the sexual act occurred, or on an earlier occasion, the person consented to engage in a sexual act (whether or not of the same type) with the person charged with the offence or with another person.
(2) In a proceeding for an offence against this Part, the Judge must, in an appropriate case, direct the jury that, in deciding whether the accused was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the mistaken belief was reasonable in the circumstances.
Note for section 208PB
The Sexual Offences (Evidence and Procedure) Act 1983 contains further provisions about evidence and procedure for offences against this Part.
A person is not criminally responsible for an offence against this Part in relation to any sexual intercourse, touching or other act done in the course of a procedure carried out in good faith for medical, hygienic, veterinary or agricultural purposes.
(1) In a proceeding against a person charged with an offence against this Part (the prosecuted offence ), the trier of fact may find the person not guilty of the prosecuted offence but guilty of another offence, or an attempt to commit another offence, against this Part (the alternative offence ) if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed the prosecuted offence; and
(b) is satisfied beyond reasonable doubt that the person committed the alternative offence.
(2) Subsection (1) does not authorise the trier of fact to find a person guilty of an alternative offence for which the maximum penalty is greater than the maximum penalty for the prosecuted offence.
(1) If any of the following things are seized by a police officer, a police officer of a senior rank may authorise the forfeiture and destruction by a police officer of the thing:
(a) an indecent image of a child;
(b) an article that contains an indecent image of a child;
(c) an article that a police officer of a senior rank believes on reasonable grounds contains an indecent image of a child.
(2) Subsection (1) has effect whether or not a person is charged, or is to be charged, with an offence in relation to the thing.
(3) The thing may be destroyed at the place at which it was forfeited or at any other place that a police officer of a senior rank thinks fit.
(4) If the operation of this section would, apart from this subsection, result in an acquisition of property from a person otherwise than on just terms:
(a) the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and
(b) a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.
(1) If an article that contains, or is believed to contain, an indecent image of a child is forfeited by a police officer under section 208PE, a police officer of a senior rank may authorise a police officer to return the article to the owner of the article.
(2) The authorisation must not be given unless the police officer of a senior rank is satisfied that all indecent images of children are removed from the article.
Part VII Property offences and related matters
Division 1 Theft and related offences
In this Division:
"appropriation", see section 212.
"belongs", in relation to property, see section 211.
"property", see section 210.
"services" includes any rights, including rights in relation to, and interests in, property, benefits, privileges or facilities, but does not include rights or benefits that are the supply of goods.
"supply" includes:
(a) in relation to goods – supply (or re-supply) by way of sale, exchange, lease, hire or hire-purchase; and
(b) in relation to services – provide, grant and confer.
In this Division, "property "means all real or personal property, including the following:
(a) money;
(b) things in action or other intangible property;
(c) electricity;
(d) a wild creature that is tamed or ordinarily kept in captivity or that is reduced or is being reduced into the possession of a person;
(e) any organ or part of a human body and any blood, ova, semen or other substance extracted from the human body.
(1) For this Division, property belongs to anyone having possession or control of it, or having any proprietary right or interest in it, other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust.
(2) If property belongs to 2 or more persons, a reference to the person to whom property belongs is taken to be a reference to all of them.
(3) Property of a corporation sole belongs to the corporation despite a vacancy in the corporation.
(4) If property is subject to a trust:
(a) the person to whom the property belongs includes any person having a right to enforce the trust; and
(b) an intention to defeat the trust is an intention to deprive any person having that right of the property.
(5) If a person ( person A ) receives property from or on account of another person ( person B ) and is under a legal obligation to person B to retain or deal with it or its proceeds in a particular way, the property or proceeds belongs (as against person A) to person B.
(6) If a person ( person A ) obtains property by another person's fundamental mistake and is under an obligation to make restoration, in whole or in part, of the property or its proceeds or its value:
(a) to the extent of that obligation, the property or proceeds belongs (as against person A) to the person entitled to restoration ( person B ); and
(b) an intention not to make restoration is an intention to deprive person B of the property or proceeds without the consent of person B.
(7) For subsection (6):
"fundamental mistake", in relation to property, means any of the following:
(a) a mistake about the identity of the person getting the property;
(b) a mistake about the essential nature of the property;
(c) a mistake about the amount of any money, direct credit into an account, cheque or other negotiable instrument if the person getting the property is aware of the mistake at the time of getting the property.
(1) For this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property.
(2) If a person has come by property (innocently or not) without committing the offence of theft, subsection (1) applies to any later assumption of those rights without consent by keeping or dealing with it as owner.
(3) If property is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights the person believed the person was acquiring is not an appropriation of the property because of any defect in the transferor's title.
(1) A person ( person A ) has the intention of permanently depriving someone else ( person B ) of property belonging to person B if:
(a) person A appropriates property belonging to person B without meaning person B to permanently lose the property; and
(b) person A intends to treat the property as person A's own to dispose of regardless of person B's rights.
(2) For subsection (1), if person A borrows or lends property belonging to person B, the borrowing or lending may amount to treating the property as person A's own to dispose of regardless of person B's rights only if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(3) Without limiting this section, person A parting with property amounts to person A treating the property as person A's own to dispose of regardless of person B's rights if:
(a) person A has possession or control (lawfully or not) of property belonging to person B; and
(b) person A parts with the property under a condition about its return that person A may not be able to carry out; and
(c) the parting is done for person A's own purposes and without person B's authority.
(4) This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property.
(1) A person's appropriation of property belonging to someone else is not dishonest if the person appropriates the property with the reasonable belief that the property is lost and the owner of the property cannot be discovered.
(2) Subsection (1) does not apply to a person appropriating the property as a trustee or personal representative.
(3) A person who appropriates the property of another person may be dishonest even if they are willing to pay for the property.
(1) A person cannot commit the offence of theft of land or things forming part of the land and severed from it by the person or at the person's directions, except in the following circumstances:
(a) when the person has legal authority to sell or dispose of land belonging to another person and the person appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in the person;
(b) when the person is not in possession of the land and appropriates anything forming part of the land:
(i) by severing it or causing it to be severed; or
(ii) after it has been severed;
(c) when in possession of the land under a tenancy, the person appropriates the whole or part of any fixture or structure that is let under the tenancy.
(2) For subsection (1)(c), a tenancy is a tenancy for years or any shorter period, and includes an agreement for a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and let is to be construed accordingly.
(3) In this section:
"land" does not include incorporeal hereditaments.
A person may be found guilty of the offence of theft in relation to all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were appropriated over a period of time.
Subdivision 2 Theft and related offences
(1) A person commits an offence if:
(a) the person appropriates property; and
(b) the property belongs to another person and the person has knowledge of that circumstance; and
(c) the person engages in the conduct mentioned in paragraph (a) with the intention of permanently depriving the other person of the property; and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 10 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(a).
(3) An offence against subsection (1) is to be known as the offence of theft .
(1) A person commits an offence if:
(a) the person commits the offence of theft; and
(b) the person:
(i) uses force on another person; or
(ii) threatens to use force then and there on another person; and
(c) the person engages in the conduct mentioned in paragraph (b) with the intention of committing the offence of theft or escaping from the scene of the offence; and
(d) the force was used or threatened when the person committed the offence of theft or immediately before or immediately after committing the offence.
Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, imprisonment for life.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(b).
(3) Strict liability applies to subsection (1)(d).
(1) Each of the following is a circumstance of aggravation in relation to an offence committed against section 218(1) if the defendant is reckless in relation to the circumstance:
(a) the offence is committed in company with one or more persons;
(b) the defendant has possession of a firearm or any other dangerous or offensive weapon when committing the offence;
(c) when committing the offence or immediately before or immediately after committing the offence, the defendant causes harm to another person.
(2) If the prosecution intends to prove an offence against section 218(1) with any aggravating circumstance mentioned in subsection (1), the relevant circumstance of aggravation must be contained in the charge.
(1) A person commits an offence if the person:
(a) enters or remains in a building; and
(b) engages in the conduct mentioned in paragraph (a) with the intention of committing an offence, other than an offence against the Trespass Act 2023 , in the building; and
(c) is a trespasser and the person is reckless in relation to that circumstance.
Maximum penalty: Imprisonment for 4 years.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a) .
(3) In a prosecution for an offence against subsection (1), proof of subsection (1)(a) and (c) is evidence of the fault element in subsection (1)(b).
(4) For this section, a person is not a trespasser merely because the person is permitted to enter or remain in the building:
(a) for a purpose that is not the person's intended purpose; or
(b) as a result of fraud, misrepresentation or another person's mistake.
(1) A person commits an offence if the person:
(a) enters or remains in a building; and
(b) engages in the conduct mentioned in paragraph (a) with the intention of committing an indictable offence or an offence against section 188(1) in the building; and
(c) is a trespasser and the person is reckless in relation to that circumstance.
Maximum penalty: Imprisonment for 14 years.
Note for subsection (1)
If the circumstances of aggravation in section 222(1) apply to the offence, the maximum penalty is the maximum penalty under section 222(2) or (3).
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a) .
(3) For this section, a person is not a trespasser merely because the person is permitted to enter or remain in the building:
(a) for a purpose that is not the person's intended purpose; or
(b) as a result of fraud, misrepresentation or another person's mistake.
(1) Each of the following is a circumstance of aggravation for an offence committed against section 221(1) if the defendant is reckless in relation to the circumstance:
(a) the building is a dwelling-house and the offence is committed at night;
(b) the offence is committed in company with one or more persons;
(c) the defendant has possession of a firearm or any other dangerous or offensive weapon when committing the offence;
(d) the building is a dwelling-house and the defendant has possession of a firearm or any other dangerous or offensive weapon when committing the offence.
(2) The maximum penalty for an offence against section 221(1) is imprisonment for 20 years if a circumstance of aggravation in subsection (1)(a), (b) or (c) applies to the offence.
(3) The maximum penalty for an offence against section 221(1) is life imprisonment if the circumstance of aggravation in subsection (1)(d) applies to the offence.
(4) If the prosecution intends to prove an offence against section 221(1) with any aggravating circumstances mentioned in subsection (1), the relevant circumstance of aggravation must be contained in the charge.
In a proceeding against a person charged with an offence against section 221(1), the trier of fact may find the person not guilty of the offence against that section but guilty of an offence against section 220(1) if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person entered or remained in a building with the intention of committing an offence mentioned in section 221(1)(b); and
(b) is satisfied beyond reasonable doubt that the person intended to commit an offence, other than an offence against the Trespass Act 2023 .
(1) A person commits an offence if:
(a) the person intentionally enters a building; and
(b) the person is a trespasser and the person is reckless in relation to that circumstance; and
(c) the person intentionally damages or otherwise interferes with the building or any property in the building.
Maximum penalty: Imprisonment for 7 years.
(2) For this section, it is immaterial whether the damage or interference:
(a) is of a permanent nature; or
(b) results in any monetary loss.
(3) In this section:
"damage" includes the following:
(a) destroying the building or property;
(b) defacing the building or property;
(c) for a document – obliterating or rendering illegible the whole or any part of the document;
(d) for an animal – harming or killing the animal;
(e) for a plant or other thing forming part of land – severing it from the land.
(1) A person commits an offence if the person:
(a) is in a place other than the person's home; and
(b) possesses an item; and
(c) engages in the conduct mentioned in paragraph (b) with the intention of using the item in the course of or in relation to committing the offence of theft or a related offence.
Maximum penalty: Imprisonment for 3 years.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(b).
(3) A person commits an offence if the person:
(a) is in a place other than the person's home; and
(b) possesses a firearm or any other dangerous or offensive weapon; and
(c) engages in the conduct mentioned in paragraph (b) with the intention of using it in the course of or in relation to committing the offence of theft or a related offence.
Maximum penalty: Imprisonment for 7 years.
(4) Subsection (3)(c) is the fault element for the conduct in subsection (3)(b).
(5) Strict liability applies to subsections (1)(a) and (3)(a).
(6) In this section:
"related offence" means an offence against any of the following:
(a) section 218;
(b) section 220;
(c) section 221;
(d) section 228AB.
(1) A person commits an offence if:
(a) the person intentionally receives property; and
(b) the property is stolen property and the person:
(i) has knowledge of that circumstance; or
(ii) believes that the circumstance exists; and
(c) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 10 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) In this section:
stolen property is any property that:
(a) is appropriated; or
(b) if the property was obtained before the commencement of this section – was obtained in the commission of an indictable offence or in the commission of an offence outside the Territory that would have constituted an indictable offence if it had been committed in the Territory.
(1) A person commits an offence if:
(a) the person appropriates property; and
(b) the property is:
(i) offered for sale at a place where goods are for sale by retail; and
(ii) worth less than $500; and
(c) the person engages in the conduct mentioned in paragraph (a) with the intention of permanently depriving the owner of the property of that property; and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: 50 penalty units or imprisonment for 6 months.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(a).
(3) Strict liability applies to subsection (1)(b).
(1) A person commits an offence if:
(a) the person is supplied with goods or services; and
(b) immediate payment for the goods or services is required or expected and the person has knowledge of that circumstance; and
(c) the person intentionally makes off without paying for the goods or services; and
(d) the conduct mentioned in paragraph (c) is dishonest.
Maximum penalty: Imprisonment for 2 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Strict liability applies to subsection (1)(a).
(3) It is not an offence if the supply of goods or services is unlawful.
(4) In this section:
"immediate payment "includes payment at the time of collecting goods in relation to which a service is supplied.
(1) A person commits an offence if:
(a) the person intentionally removes an item from premises; and
(b) the premises are at any time open to the public; and
(c) the item is publicly exhibited or kept for public exhibition at the premises but is not exhibited or kept for the purpose of selling or any other commercial dealing; and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 3 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Strict liability applies to subsection (1)(b) and (c).
(1) A person commits an offence if:
(a) the person intentionally drives, uses or rides in or on a motor vehicle, vessel or aircraft; and
(b) the motor vehicle, vessel or aircraft:
(i) belongs to another person (the owner ); and
(ii) was taken from the owner without the owner's consent; and
(c) the person is reckless in relation to the circumstances in paragraph (b); and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: If the offence relates to a motor vehicle or vessel – imprisonment for 5 years.
If the offence relates to an aircraft – imprisonment for 7 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) In this section:
"motor vehicle "means any vehicle for use on land that is designed to be wholly or partly self-propelled and includes any trailer or caravan attached to it.
Division 2 Deception, dishonesty and blackmail
Subdivision 1 Interpretation and general matters
In this Division:
"belongs", in relation to property, means having possession or control of it, or having any proprietary right or interest in it, other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust.
"deception" means a deception whether by words or other conduct, and whether as to fact or as to law, and includes:
(a) a deception about the intention of the person using the deception or anyone else; and
(b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.
"demand with a menace", see section 228AF.
"menace", see section 228AD.
"obtain", in relation to property, see section 228AE.
(1) A menace includes:
(a) an express or implied threat of action that is detrimental or unpleasant to another person; or
(b) if a person makes a demand – a general threat of detrimental or unpleasant action against another person that is implied because the person making the demand is a public officer.
(2) A threat against an individual is a menace only if:
(a) the threat would likely cause an individual of normal stability and courage to act unwillingly; or
(b) the threat would likely cause an individual to act unwillingly because of a particular vulnerability of which the maker of the threat is aware.
(3) A threat against an entity other than an individual is a menace only if:
(a) the threat would ordinarily cause an unwilling response; or
(b) the threat would likely cause an unwilling response because of a particular vulnerability of which the maker of the threat is aware.
(1) For section 228AH, a person obtains property if:
(a) the person obtains ownership, possession or control of it for the person or another person; or
(b) the person enables ownership, possession or control of it to be retained by the person or another person; or
(c) the person induces a third person to pass ownership, possession or control of it to another person; or
(d) the person induces a third person to enable another person to retain ownership, possession or control of it; or
(e) section 228AI applies in relation to the property.
(2) To avoid doubt, subsection (1) does not apply in relation to sections 228AK, 228AL and 228AO.
For a demand with a menace :
(a) the demand need not be a demand for money or other property; and
(b) it is irrelevant whether the menace relates to an action to be taken by the person making the demand.
(1) A person ( person A ) has the intention of permanently depriving someone else ( person B ) of property belonging to person B if:
(a) person A obtains property belonging to person B without meaning person B to permanently lose the property; and
(b) person A intends to treat the property as person A's own to dispose of regardless of person B's rights.
(2) For subsection (1), if person A borrows or lends property belonging to person B, the borrowing or lending may amount to treating the property as person A's own to dispose of regardless of person B's rights only if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(3) Without limiting this section, person A parting with property amounts to person A treating the property as person A's own to dispose of regardless of person B's rights if:
(a) person A has possession or control (lawfully or not) of property belonging to person B; and
(b) person A parts with the property under a condition about its return that person A may not be able to carry out; and
(c) the parting is done for person A's own purposes and without person B's authority.
(4) This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property.
(1) A person commits an offence if:
(a) the person engages in deception; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of permanently depriving another person of property; and
(c) the conduct mentioned in paragraph (a) results in the person obtaining the property belonging to the other person and the person intended that result; and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 10 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a).
(3) For this section, a person who obtains the property of another person may be dishonest even if they are willing to pay for the property.
(4) In this section:
"property "means all real or personal property, including the following:
(a) money;
(b) things in action or other intangible property;
(c) electricity;
(d) a wild creature that is tamed or ordinarily kept in captivity or that is reduced or is being reduced into the possession of a person;
(e) any organ or part of a human body and any blood, ova, semen or other substance extracted from the human body.
(1) This section applies in relation to section 228AH.
(2) If a person ( person A ) causes an amount to be transferred from an account held by someone else ( person B ) to an account held by person A:
(a) the amount is taken to be property that belongs to person B; and
(b) person A is taken to have obtained the property for person A with the intention of permanently depriving person B of the property.
(3) If a person ( person A ) causes an amount to be transferred from an account held by someone else ( person B ) to an account held by a third person ( person C ):
(a) the amount is taken to be property that belongs to person B; and
(b) person A is taken to have obtained the property for person C with the intention of permanently depriving person B of the property.
(4) An amount is transferred from an account ( account 1 ) to another account ( account 2 ) if:
(a) a credit is made to account 2; and
(b) a debit is made to account 1; and
(c) the credit results from the debit or the debit results from the credit.
(5) A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder).
A person may be found guilty of the offence of obtaining property by deception in relation to all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were obtained over a period of time.
A person commits an offence if:
(a) the person intentionally engages in deception; and
(b) the conduct mentioned in paragraph (a) results in the person obtaining a financial advantage from another person and the person intended that result; and
(c) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 10 years.
Note for paragraph (c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of obtaining a gain from another person; and
(c) the conduct mentioned in paragraph (a) is dishonest; and
(d) the other person is the Territory.
Maximum penalty: Imprisonment for 5 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a).
(3) Absolute liability applies to subsection (1)(d).
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of causing a loss to another person; and
(c) the conduct mentioned in paragraph (a) is dishonest; and
(d) the other person is the Territory.
Maximum penalty: Imprisonment for 5 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a).
(3) Absolute liability applies to subsection (1)(d).
(1) A person commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct results in a loss, or a risk of loss, to another person and the person knows the loss will happen or knows there is a substantial risk of the loss happening; and
(c) the conduct mentioned in paragraph (a) is dishonest; and
(d) the other person is the Territory.
Maximum penalty: Imprisonment for 5 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Absolute liability applies to subsection (1)(d).
(1) A person commits an offence if:
(a) the person makes a demand with a menace of another person; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of:
(i) obtaining a gain from the other person or a third person; or
(ii) causing the other person or a third person a loss; or
(iii) influencing the other person or a third person in the exercise of their public duty; and
(c) there are no reasonable grounds for the demand; and
(d) the use of the menace is not a proper means of enforcing the demand.
Maximum penalty: Imprisonment for 14 years.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a).
(3) Strict liability applies to subsection (1)(c) and (d).
(4) In this section:
"public duty" means a duty of a public officer.
Division 2A Identity crime
Note for Division 2A
Under section 28C of the Local Court (Civil Procedure) Act 1989 and Part 5, Division 1AA of the Sentencing Act 1995 a certificate may be issued to a victim of an offence against section 228C, 228D or 228E. The certificate may assist the victim to deal with any problems caused by the commission of the offence in relation to the victim's personal or business affairs. Under the Local Court (Civil Procedure) Act 1989 , the certificate may be issued whether or not any criminal proceedings have been or can be taken against a person in relation to the offence or are pending.
In this Division:
"deal in" includes make, copy, store, supply, transmit or use.
"identification documentation "means a document or other thing that:
(a) contains identification information; and
(b) can be used by a person to pretend to be, or to pass the person off as, another person (whether living, dead, real or fictitious).
"identification information "means information that can be used (whether alone or in conjunction with other information) to identify, or purportedly identify, a person (whether living, dead, real or fictitious), including the following:
(a) a name, address, date of birth or place of birth;
(b) information as to a person's marital status;
(c) information about the relatives of a person;
(d) a driver's licence or driver's licence number;
(e) a passport or passport number;
(f) biometric data;
(g) a voice print;
(h) a credit or debit card, its number, or data stored or encrypted on it;
(i) a financial account number, user name or password;
(j) a digital signature;
(k) a series of numbers, letters, symbols (or a combination of these) intended for use as a means of personal identification;
(l) an ABN, as defined in the A New Tax System (Australian Business Number) Act 1999 (Cth).
"victim "means a person whose identification information is the subject of an offence against section 228C, 228D or 228E.
Section 43BF does not apply to an offence against section 228C, 228D or 228E.
(1) A person commits an offence if:
(a) the person deals in information; and
(b) the information is identification information; and
(c) the person does so with intent to commit an offence or facilitate the commission of an offence.
Maximum penalty: Imprisonment for 7 years.
(2) This section applies:
(a) even if the offence mentioned in subsection (1)(c) is impossible to commit; and
(b) whether or not the victim consented to the dealing in the identification information.
(3) This section does not apply to dealing in a person's own identification information.
(1) A person commits an offence if:
(a) the person possesses information; and
(b) the information is identification information; and
(c) the person does so with intent to commit an offence or facilitate the commission of an offence.
Maximum penalty: Imprisonment for 3 years.
(2) This section applies:
(a) even if the offence mentioned in subsection (1)(c) is impossible to commit; and
(b) whether or not the victim consented to the possession of the identification information.
(3) This section does not apply to the possession of a person's own identification information.
(1) A person commits an offence if:
(a) the person possesses equipment; and
(b) the equipment can be used to deal in identification information or identification documentation; and
(c) the person does so with intent to commit an offence or facilitate the commission of an offence.
(2) This section applies even if the offence mentioned in subsection (1)(c) is impossible to commit.
Maximum penalty: Imprisonment for 3 years.
(1) This section applies if, in a proceeding against a person charged with an offence against section 228C (the prosecuted offence ), the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the person committed an offence against section 228D (the alternative offence ).
(2) The trier of fact may find the person not guilty of the prosecuted offence but guilty of the alternative offence.
In this Division:
"deals with", in relation to money or other property, means:
(a) receives or has possession or control of the money or other property; or
(b) conceals or attempts to conceal the money or other property; or
(c) passes the money or other property to another person or disposes of the money or other property in any other way.
"indictable offence" includes an offence against a law of the Commonwealth, a State, another Territory or a foreign state, that would be an indictable offence if committed in the Territory.
"proceeds of crime" means money or other property that is derived or realised, directly or indirectly, by any person from the commission of an indictable offence.
(1) A person commits an offence if:
(a) the person intentionally deals with money or other property; and
(b) the money or other property:
(i) is the proceeds of crime; or
(ii) is being used or is intended to be used in the commission of, or to facilitate the commission of, an indictable offence; and
(c) the person:
(i) has knowledge of that circumstance; or
(ii) believes that that circumstance exists.
Maximum penalty: Imprisonment for 20 years.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant engaged in the conduct mentioned in subsection (1)(a) in order to assist the enforcement of a law of the Territory, the Commonwealth, a State or another Territory.
Note for section 230
The defendant has an evidential burden in relation to the matters in subsection (2) (see section 43BU of the Criminal Code).
(1) A person commits an offence if:
(a) the person intentionally deals with money or other property; and
(b) the money or other property:
(i) is the proceeds of crime; or
(ii) is being used or is intended to be used in the commission of, or to facilitate the commission of, an indictable offence; and
(c) the person is reckless in relation to that circumstance.
Maximum penalty: Imprisonment for 10 years.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant engaged in the conduct mentioned in subsection (1)(a) in order to assist the enforcement of a law of the Territory, the Commonwealth, a State or another Territory.
Note for section 231
The defendant has an evidential burden in relation to the matters in subsection (2) (see section 43BU of the Criminal Code).
(1) A person commits an offence if:
(a) the person intentionally deals with money or other property; and
(b) it is reasonable to suspect that the money or other property is proceeds of crime.
Maximum penalty: Imprisonment for 2 years.
(2) Absolute liability applies to subsection (1)(b).
(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant had no reasonable grounds for suspecting that the money or other property was derived or realised, directly or indirectly, from some unlawful activity.
(4) The defendant has a legal burden of proof in relation to the matter mentioned in subsection (3).
(5) For subsection (1)(b), it is taken to be reasonable to suspect that money or other property is proceeds of crime if:
(a) the conduct mentioned in subsection (1)(a) involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 (Cth) that would otherwise apply to the transactions; or
(b) the conduct mentioned in subsection (1)(a) involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) that would otherwise apply to the transactions; or
(c) the conduct mentioned in subsection (1)(a) involves the use of one or more accounts held with ADIs in false names; or
(d) the conduct mentioned in subsection (1)(a) amounts to an offence against section 139, 140 or 141 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); or
(e) the value of the money and property involved in the conduct mentioned in subsection (1)(a) is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure over a reasonable period within which the conduct occurs; or
(f) the conduct mentioned in subsection (1)(a) involves a significant cash transaction within the meaning of the Financial Transaction Reports Act 1988 (Cth), and the defendant:
(i) contravened the defendant's obligations under that Act relating to reporting the transaction; or
(ii) gave false or misleading information in purported compliance with those obligations; or
(g) the conduct mentioned in subsection (1)(a) involves a threshold transaction within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), and the defendant:
(i) has contravened the defendant's obligations under that Act relating to reporting the transaction; or
(ii) has given false or misleading information in purported compliance with those obligations; or
(h) the defendant:
(i) has stated that the conduct mentioned in subsection (1)(a) was engaged in on behalf of or at the request of another person; and
(ii) has not provided information enabling the other person to be identified and located.
Note for subsection (5)
Subsection (5) is not an exhaustive list of circumstances.
(1) To avoid doubt, it is not necessary, in order to prove for the purposes of section 230, 231 or 232, that money or other property is the proceeds of crime, to establish that:
(a) a particular indictable offence was committed in relation to the money or other property; or
(b) a particular person committed an indictable offence in relation to the money or other property.
(2) To avoid doubt, it is not necessary, in order to prove for the purposes of section 230 or 231, that money or other property is being used or is intended to be used in the commission of, or to facilitate the commission of, an indictable offence, to establish that:
(a) a particular indictable offence is being committed or an intention that a particular indictable offence will be committed in relation to the money or other property; or
(b) a particular person is committing an indictable offence or an intention that a particular person will commit an indictable offence in relation to the money or other property.
A prosecution for an offence against this Division must not be commenced without the consent of the Director of Public Prosecutions.
(1) In a proceeding against a person charged with an offence against section 230, the trier of fact may find the person not guilty of the offence against that section but guilty of an alternative offence if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed an offence against section 230; and
(b) is satisfied beyond reasonable doubt that the person committed an offence against the alternative offence.
(2) In this section:
"alternative offence" means an offence against section 231 or 232.
In a proceeding against a person charged with an offence against section 231, the trier of fact may find the person not guilty of the offence against that section but guilty of an offence against section 232 if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed an offence against section 231; and
(b) is satisfied beyond reasonable doubt that the person committed an offence against section 232.
Despite section 43BF(4), for an offence of attempting to commit an offence against section 231, recklessness is the fault element in relation to the physical element in section 231(1)(b).
Division 4 False accounting and false statements
(1) A person commits an offence if:
(a) the person damages, destroys or conceals an accounting document; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of obtaining a gain from another person or causing a loss for another person; and
(c) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 7 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a).
(3) A person commits an offence if:
(a) the person:
(i) makes, or concurs in making, an entry that is false or misleading in a material particular in an accounting document; or
(ii) omits, or concurs in omitting, a material particular from an accounting document; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of obtaining a gain from another person or causing a loss for another person; and
(c) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 7 years.
Note for subsection (3)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(4) Subsection (3)(b) is the fault element for the conduct in subsection (3)(a).
(5) A person commits an offence if:
(a) the person produces to another person, or makes use of, an accounting document; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of obtaining a gain from another person or causing a loss for another person; and
(c) the document is false or misleading in a material particular and the person is reckless in relation to that circumstance; and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 7 years.
Note for subsection (5)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(6) Subsection (5)(b) is the fault element for the conduct in subsection (5)(a).
(7) In this section:
"accounting document" means any account, record or document made or required for any accounting purpose or any similar purpose or for any financial transaction.
(1) A person commits an offence if:
(a) the person is an officer of a body corporate or unincorporated association or purports to be an officer of a body corporate or unincorporated association; and
(b) the person publishes or concurs in the publishing of a document containing a statement or account; and
(c) the person engages in the conduct mentioned in paragraph (b) with the intention of deceiving members or creditors of the body corporate or unincorporated association about the body corporate's or unincorporated association's affairs; and
(d) the document is false or misleading in a material particular and the person has knowledge of that circumstance.
Maximum penalty: Imprisonment for 7 years.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(b).
(3) Strict liability applies to subsection (1)(a).
(4) In this section:
"creditor", of a body corporate or unincorporated association, includes a person who has entered into a security for the benefit of the body corporate or unincorporated association.
"officer", of a body corporate or unincorporated association, includes:
(a) any member of the body corporate or unincorporated association who is concerned in its management; and
(b) any person purporting to act as an officer of the body corporate or unincorporated association.
A person commits an offence if:
(a) the person intentionally makes or concurs in making an entry in a register or record kept by a body, office or position established by an Act; and
(b) the entry is false or misleading in a material particular and the person has knowledge of that circumstance.
Maximum penalty: Imprisonment for 7 years.
Division 5 Bribery and secret commissions
(1) In this Division:
"agent" includes the following:
(a) a person acting for another person with that other person's actual or implied authority;
(b) a public officer;
(c) an employee of an employer;
(d) a lawyer acting for a client;
(e) a partner in a partnership;
(f) an officer of a body corporate (whether or not employed by it);
(g) an officer of another body (whether or not employed by it);
(h) a consultant to a person.
"benefit" means a benefit of any kind, including a non-pecuniary benefit.
"obtain", see section 236F.
"principal", for an agent, means the following:
(a) if the agent is a person acting for another person with that other person's actual or implied authority – the other person;
(b) if the agent is a public officer – the government or other body for which the public officer acts;
(c) if the agent is an employee of an employer – the employer;
(d) if the agent is a lawyer acting for a client – the client;
(e) if the agent is a partner in a partnership – the partnership;
(f) if the agent is an officer of a body corporate (whether or not employed by it) – the body corporate;
(g) if the agent is an officer of another body (whether or not employed by it) – the body;
(h) if the agent is a consultant to a person – the person.
(2) A person is an agent or a principal if the person is, or has been or intends to be, an agent or a principal.
(1) In this Division, "obtain" includes:
(a) obtain for another person; and
(b) induce a third person to do something that results in another person obtaining; or
(2) A person ( person A ) is taken to obtain a benefit for another person ( person B ) if person A induces a third person to do something that results in person B obtaining the benefit.
(1) A person commits an offence if:
(a) the person:
(i) provides a benefit to an agent or another person; or
(ii) causes a benefit to be provided to an agent or another person; or
(iii) offers to provide, or promises to provide, a benefit to an agent or another person; or
(iv) causes an offer to provide, or causes a promise to provide, a benefit to be made to an agent or another person; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention that the agent will:
(i) be influenced or affected in the exercise of the agent's function as agent; or
(ii) do or not do something as agent, or because of the agent's position as agent; or
(iii) cause or influence the agent's principal, or another agent of the principal, to do or not do something; and
(c) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 7 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a).
(1) A person commits an offence if:
(a) the person is an agent ( the agent ); and
(b) the agent:
(i) requests a benefit from a person for the agent or another person; or
(ii) obtains a benefit from a person for the agent or another person; or
(iii) agrees to obtain a benefit from a person for the agent or another person; and
(c) the agent engages in the conduct mentioned in paragraph (b) with the intention:
(i) that the agent will:
(A) be influenced or affected in the exercise of the agent's function as agent; or
(B) do or not do something as agent, or because of the agent's position as agent; or
(C) cause or influence the agent's principal, or another agent of the principal, to do or not do something; or
(ii) of inducing, fostering or sustaining a belief that the agent will:
(A) be influenced or affected in the exercise of the agent's function as agent; or
(B) do or not do something as agent, or because of the agent's position as agent; or
(C) cause or influence the agent's principal, or another agent of the principal, to do or not do something; and
(d) the conduct mentioned in paragraph (b) is dishonest.
Maximum penalty: Imprisonment for 7 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(b).
(3) Strict liability applies to subsection (1)(a).
A person commits an offence if:
(a) the person intentionally:
(i) provides a benefit to an agent or another person; or
(ii) causes a benefit to be provided to an agent or another person; or
(iii) offers to provide, or promises to provide, a benefit to an agent or another person; or
(iv) causes an offer to provide, or causes a promise to provide, a benefit to be made to an agent or another person; and
(b) the conduct mentioned in paragraph (a) is dishonest; and
(c) obtaining, or expecting to obtain, the benefit would tend to influence the agent to:
(i) be influenced or affected in the exercise of the agent's function as agent; or
(ii) do or not do something as agent, or because of the agent's position as agent; or
(iii) cause or influence the agent's principal, or another agent of the principal, to do or not do something; and
(d) the person is reckless in relation to the circumstance mentioned in paragraph (c).
Maximum penalty: Imprisonment for 5 years.
Note for paragraph (b)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(1) A person commits an offence if:
(a) the person is an agent ( the agent ); and
(b) the agent intentionally:
(i) requests a benefit from a person for the agent or another person; or
(ii) obtains a benefit from a person for the agent or another person; or
(iii) agrees to obtain a benefit from a person for the agent or another person; and
(c) the conduct mentioned in paragraph (b) is dishonest; and
(d) obtaining, or expecting to obtain, the benefit would tend to influence the agent to:
(i) be influenced or affected in the exercise of the agent's function as agent; or
(ii) do or not do something as agent, or because of the agent's position as agent; or
(iii) cause or influence the agent's principal, or another agent of the principal, to do or not do something; and
(e) the agent is reckless in relation to the circumstance mentioned in paragraph (d).
Maximum penalty: Imprisonment for 5 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Strict liability applies to subsection (1)(a).
In a proceeding against a person charged with an offence against section 236G, the trier of fact may find the person not guilty of the offence against that section but guilty of an offence against section 236J if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed an offence against section 236G; and
(b) is satisfied beyond reasonable doubt that the person committed an offence against section 236J.
In a proceeding against a person charged with an offence against section 236H, the trier of fact may find the person not guilty of the offence against that section but guilty of an offence against section 236K if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed an offence against section 236H; and
(b) is satisfied beyond reasonable doubt that the person committed an offence against section 236K.
(1) A person commits an offence if:
(a) the person intentionally holds themselves out to the public as being engaged in a business or activity of:
(i) making independent selections or examinations; or
(ii) expressing disinterested opinions in respect of property or services; and
(b) the person requests, receives or obtains, or agrees to receive or obtain, a benefit from another person; and
(c) the person engages in the conduct mentioned in paragraph (b) with the intention that the benefit will influence the person's selection, examination or opinion; and
(d) the conduct mentioned in paragraph (b) is dishonest.
Maximum penalty: Imprisonment for 3 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(b).
Division 5A Cheating at Gambling
Subdivision 1 Preliminary matters
In this Division:
agreement about conduct that corrupts a betting outcome of an event , see section 237B(2).
"bet", see section 237C(1).
"cause a financial disadvantage", see section 237E(2).
conduct that corrupts a betting outcome of an event , see section 237B(1).
"encourage", see section 237G.
"event", see section 237D(1).
"event contingency", see section 237D(2).
"obtain a financial advantage", see section 237E(1).
(1) Conduct corrupts a betting outcome of an event if the conduct:
(a) affects or, if engaged in, would be likely to affect the outcome of any type of betting on the event; and
(b) is contrary to the standards of integrity that a reasonable person would expect of persons in a position to affect the outcome of any type of betting on the event.
(2) An agreement about conduct that corrupts a betting outcome of an event is an agreement between 2 or more persons under which one or more of them agrees to engage in conduct that corrupts a betting outcome of an event.
(1) To "bet "includes doing any of the following:
(a) placing, accepting or withdrawing a bet;
(b) causing a bet to be placed, accepted or withdrawn.
(2) In this Division, a reference to betting on an event includes a reference to betting on any event contingency.
(1) An "event" means any event (whether it takes place in the Territory or elsewhere) on which it is lawful to bet under the laws of the Territory, a State, another Territory or the Commonwealth.
(2) An "event contingency "means any contingency:
(a) that is connected in any way with an event; and
(b) on which it is lawful to bet under the laws of the Territory, a State, another Territory or the Commonwealth.
(1) "Obtaining a financial advantage" includes any of the following, whether the financial advantage is permanent or temporary:
(a) obtaining a financial advantage for oneself or for another person;
(b) inducing a third person to do something that results in oneself or another person obtaining a financial advantage;
(c) keeping a financial advantage that one has.
(2) Causing a financial disadvantage includes any of the following, whether the financial disadvantage is permanent or temporary:
(a) causing a financial disadvantage to another person;
(b) inducing a third person to do something that results in another person suffering a financial disadvantage.
(1) In proceedings for an offence under section 237H, 237J or 237K, the defendant is taken to have intended to obtain a financial advantage, or to cause a financial disadvantage, if, and only if, it is proved that:
(a) the defendant intended to obtain a financial advantage, or cause a financial disadvantage, in connection with betting on the event; or
(b) the defendant knew that another person intended to obtain a financial advantage, or cause a financial disadvantage, in connection with betting on the event, as a result of the conduct the subject of the charge.
(2) It is not necessary to prove that any financial advantage was actually obtained or any financial disadvantage was actually caused.
(3) In this section:
"conduct the subject of the charge" means:
(a) in the case of an offence against section 237H – the conduct that the defendant engaged in; or
(b) in the case of an offence against section 237J(1) – the conduct that the defendant offered to engage in; or
(c) in the case of an offence against section 237J(2) – the conduct that the defendant encouraged another person to engage in; or
(d) in the case of an offence against section 237J(3) – the conduct the subject of the agreement; or
(e) in the case of an offence against section 237K – the conduct, or the conduct the subject of the agreement, that the defendant encouraged another person to conceal.
"Encouraging" another person to engage in conduct includes commanding, requesting, proposing, advising, inciting, inducing, persuading, authorising, urging, threatening or placing pressure on the person to engage in the conduct.
A person is guilty of an offence if the person:
(a) engages in conduct that corrupts a betting outcome of an event; and
(b) does so with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event.
Maximum penalty: Imprisonment for 7 years.
(1) A person is guilty of an offence if the person:
(a) offers to engage in conduct that corrupts a betting outcome of an event; and
(b) does so with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event.
Maximum penalty: Imprisonment for 7 years.
(2) A person is guilty of an offence if the person:
(a) encourages another person to engage in conduct that corrupts a betting outcome of an event; and
(b) does so with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event.
Maximum penalty: Imprisonment for 7 years.
(3) A person is guilty of an offence if the person:
(a) enters into an agreement about conduct that corrupts a betting outcome of an event; and
(b) does so with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event.
Maximum penalty: Imprisonment for 7 years.
(1) A person is guilty of an offence if the person:
(a) encourages another person to conceal from any appropriate authority conduct, or an agreement about conduct, that corrupts a betting outcome of an event; and
(b) does so with the intention of obtaining a financial advantage, or causing a financial disadvantage, in connection with any betting on the event.
Maximum penalty: Imprisonment for 7 years.
(2) In this section:
"appropriate authority" includes:
(a) a police officer; or
(b) a body that has the official function of controlling, regulating or supervising an event or any betting on an event.
(1) A person is guilty of an offence if:
(a) the person possesses information in connection with an event; and
(b) the information is corrupt conduct information; and
(c) the person:
(i) bets on the event; or
(ii) encourages another person to bet on the event in a particular way; or
(iii) communicates the information, or causes the information to be communicated, to another person who the first person knows or ought reasonably to know would or would be likely to bet on the event.
Maximum penalty: Imprisonment for 7 years.
(2) Information in connection with an event is corrupt conduct information if the information is about conduct, or proposed conduct, that corrupts a betting outcome of an event.
(3) In proceedings for an offence against subsection (1)(c)(ii) or (iii), it is not necessary to prove that the person encouraged to bet, or to whom information was communicated, actually bet on the event concerned.
(1) A person is guilty of an offence if:
(a) the person possesses information in connection with an event; and
(b) the information is inside information; and
(c) the person:
(i) bets on the event; or
(ii) encourages another person to bet on the event in a particular way; or
(iii) communicates the information, or causes the information to be communicated, to another person who the first person knows or ought reasonably to know would or would be likely to bet on the event.
Maximum penalty: Imprisonment for 2 years.
(2) Information in connection with an event is inside information if the information:
(a) is not generally available; and
(b) if it were generally available, would, or would be likely to, influence persons who commonly bet on the event:
(i) in deciding whether or not to bet on the event; or
(ii) in making any other betting decision.
(3) Information is generally available if:
(a) it consists of matter that is readily observable by the public; or
(b) it has been made known in a manner that would, or would be likely to, bring it to the attention of the public; or
(c) it consists of deductions, conclusions or inferences made or drawn from information mentioned in paragraph (a) or (b).
(4) In proceedings for an offence against subsection (1)(c)(ii) or (iii), it is not necessary to prove that the person encouraged to bet, or to whom information was communicated, actually bet on the event concerned.
(1) This section applies if, in a proceeding against a person charged with an offence against section 237L (the prosecuted offence ), the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the person committed an offence against section 237M (the alternative offence ).
(2) The trier of fact may find the person not guilty of the prosecuted offence but guilty of the alternative offence.
In this Division:
"belongs", in relation to property, see section 239.
"causes", in relation to damage or other result, see section 240.
"damage", to property, includes:
(a) destroying the property; and
(b) causing the physical loss of the property by interfering with the property (including by removing any restraint over the property or abandoning the property); and
(c) causing any loss of a use or function of the property by interfering with the property; and
(d) defacing the property, and
(e) for a document – obliterating or rendering illegible the whole or any part of the document; and
(f) for an animal – harming or killing the animal; and
(g) for a plant or other thing forming part of land – severing it from the land.
"property":
(a) means any real or personal property of a tangible nature; and
(b) without limiting paragraph (a), includes:
(i) a wild creature that is tamed or ordinarily kept in captivity or that is or is being reduced into the possession of a person; and
(ii) any organ or part of a human body and any blood, ova, semen or other substance extracted from the human body.
property damage offence means:
(a) an offence against Subdivision 2 (other than an offence against section 242); or
(b) conduct in a State or another Territory that:
(i) is an offence against a law of that State or Territory; and
(ii) would constitute an offence against Subdivision 2 (other than an offence against section 242) if the conduct occurred in the Territory.
(1) For this Division, property belongs to anyone who has:
(a) possession or control of it; or
(b) any proprietary right or interest in it, other than an equitable interest arising only from:
(i) an agreement to transfer or grant an interest; or
(ii) a constructive trust.
(2) If property is subject to a trust, the person to whom the property belongs includes anyone having a right to enforce the trust.
(3) If property belongs to 2 or more persons:
(a) a reference in this Division to a person to whom the property belongs is a reference to all those persons; and
(b) for an offence committed by a person (the "defendant") – a reference in this Division to property belonging to another person includes a reference to property belonging to the defendant and other persons.
For this Division, a person causes damage or any other result if the person's conduct substantially contributes to the damage or other result.
(1) A person is guilty of an offence if the person causes damage to property belonging to another person.
Fault elements:
The person:
(a) intentionally causes damage to property belonging to that other person or someone else; or
(b) is reckless as to causing damage to property belonging to that other person or someone else.
Maximum penalty: Imprisonment for 10 years.
(2) A person is guilty of an offence if the person makes a threat to another person to cause damage to property.
Fault elements:
The person:
(a) intentionally makes a threat to another person to cause damage to property; and
(b) is reckless as to causing the other person to fear that:
(i) the threat will be carried out; and
(ii) the carrying out of the threat will cause death or serious harm to someone.
Maximum penalty: Imprisonment for 7 years.
(3) A person is guilty of an offence if the person makes a threat to another person to cause damage to property belonging to that other person or someone else.
Fault elements:
The person:
(a) intentionally makes a threat to another person to cause damage to property belonging to that other person or someone else; and
(b) intends to cause the other person to fear that the threat will be carried out.
Maximum penalty: Imprisonment for 2 years.
(4) For subsections (2) and (3):
(a) it is not necessary to prove that the threatened person actually feared that the threat would be carried out; and
(b) a threat may be made by any conduct, and may be explicit or implicit and may be conditional or unconditional; and
(c) a threat to a person includes a threat to a group of persons; and
(d) fear that a threat will be carried out includes apprehension that the threat will be carried out.
(5) A person is guilty of an offence if the person possesses a thing for use by that person or someone else to cause damage to property belonging to another person.
Fault element:
The person intends that the person or someone else will use the thing to cause damage to property belonging to another person.
Maximum penalty: Imprisonment for 2 years.
(1) A person is guilty of an offence if the person:
(a) commits a property damage offence; and
(b) causes damage to a public facility in committing the property damage offence.
Fault elements:
The person:
(a) has the fault elements for a particular property damage offence; and
(b) in committing the property damage offence, intends to cause:
(i) major disruption to government functions; or
(ii) major disruption to the use of services by the public; or
(iii) major economic loss.
Maximum penalty: Imprisonment for life.
(2) A person who is convicted of the offence of attempting to commit an offence against subsection (1) is punishable by imprisonment not exceeding 14 years.
Note for subsection (2)
For the offence of attempting to commit the offence, see section 43BF.
(3) A person is guilty of an offence if the person makes a threat to another person to damage a public facility.
Fault elements:
The person:
(a) intentionally makes a threat to another person to damage a public facility; and
(b) intends to cause the other person to fear that the threat will be carried out and will cause:
(i) major disruption to government functions; or
(ii) major disruption to the use of services by the public; or
(iii) major economic loss.
Maximum penalty: Imprisonment for 15 years.
(4) For subsection (3):
(a) it is not necessary to prove that the threatened person actually feared that the threat would be carried out; and
(b) a threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional; and
(c) a threat to a person includes a threat to a group of persons; and
(d) fear that a threat will be carried out includes apprehension that the threat will be carried out.
(5) In this section:
"damage to a public facility" means:
(a) causing damage to a public facility or any part of the facility; or
(b) causing disruption to the use or operation of a public facility.
"public facility" means any of the following (whether publicly or privately owned):
(a) government facilities, including premises used by government employees in connection with official duties;
(b) public infrastructure facilities, including facilities providing water, sewerage, energy, fuel, communication or other services to the public;
(c) public information systems, including systems used to generate, send, receive, store or otherwise process electronic communications;
(d) public transport facilities, including facilities used to transport people or goods;
(e) public places, including any premises, land or water open to the public.
(1) A person is guilty of an offence if the person causes damage to a building or conveyance by using fire or an explosive substance.
Fault elements:
The person:
(a) intentionally uses fire or an explosive substance; and
(b) intentionally causes, or is reckless as to causing, damage to a building or conveyance.
Maximum penalty: Imprisonment for life.
(2) A person who is convicted of the offence of attempting to commit an offence against subsection (1) is punishable by imprisonment not exceeding 14 years.
Note for subsection (2)
For the offence of attempting to commit the offence, see section 43BF.
(3) A person is guilty of an offence if the person makes a threat to another person to use fire or an explosive substance to cause damage to a building or conveyance.
Fault elements:
The person:
(a) intentionally makes a threat to another person to use fire or an explosive substance to cause damage to a building or conveyance; and
(b) intends to cause, or is reckless as to causing, another person to fear that the threat will be carried out.
Maximum penalty: Imprisonment for 7 years.
(4) For subsection (3):
(a) it is not necessary to prove that the threatened person actually feared that the threat would be carried out; and
(b) a threat may be made by any conduct, and may be explicit or implicit and may be conditional or unconditional; and
(c) a threat to a person includes a threat to a group of persons; and
(d) fear that a threat will be carried out includes apprehension that the threat will be carried out.
(5) In this section:
"building" includes:
(a) a part of a building; and
(b) all or part of any other structure or thing (whether or not moveable) that is used, designed or adapted for residential purposes (for example, a caravan).
"conveyance" means an aircraft, vessel, train, motor vehicle or trailer attached to a motor vehicle.
(1) A person is guilty of an offence if:
(a) the person causes a fire; and
(b) there is a substantial risk that:
(i) the fire would spread to vegetation on property belonging to another person; and
(ii) the person would not be able to stop the spreading of the fire.
Fault elements:
The person:
(a) intentionally causes the fire or is reckless as to causing the fire; and
(b) is reckless as to the risk.
Maximum penalty: Imprisonment for 15 years.
(2) Subsection (1) does not apply to a person who caused a fire for the purposes of fire management or land management (or both):
(a) in accordance with a law in force in the Territory (including, for example, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the Bushfires Management Act 2016 and the Fire and Emergency Act ) 1996 ; or
(b) in accordance with an agreement entered into by the Territory.
Example for subsection (2)(a)
A person who caused a fire in the course of carrying out fire management activities such as hazard reduction activities under the Fire and Emergency Act 1996.
Example for subsection (2)(b)
A person who caused a fire in the course of carrying out fire management and land management activities under an agreement between the Territory and a private company established for the reduction of greenhouse gas emissions.
(3) For this section, a person causes a fire if the person:
(a) lights a fire; or
(b) maintains a fire.
A person is guilty of an offence if:
(a) the person leaves an explosive substance at a place; and
(b) there is a substantial risk that the explosive substance would cause damage to property belonging to another person.
Fault elements:
The person:
(a) intentionally leaves an explosive substance at a place; and
(b) is reckless as to the risk.
Maximum penalty: Imprisonment for 2 years.
(1) A person is guilty of an offence if the person engages in conduct that results in a substantial risk of endangering the safe operation of an aircraft.
Fault elements:
The person:
(a) intentionally engages in the conduct; and
(b) is reckless as to the result.
Maximum penalty: Imprisonment for life.
(2) A person who is convicted of the offence of attempting to commit an offence against subsection (1) is punishable by imprisonment not exceeding 14 years.
Note for subsection (2)
For the offence of attempting to commit the offence, see section 43BF.
A person is guilty of an offence if the person obstructs any aircraft in its passage on a runway.
Fault element:
The person intentionally obstructs, or is reckless as to obstructing, any aircraft in its passage on a runway.
Maximum penalty: Imprisonment for 5 years.
Subdivision 3 Circumstances in which there is no criminal responsibility
A person (the defendant ) is not criminally responsible for an offence against this Division that involves damage to property (other than section 242) if, at the time of the conduct constituting the offence:
(a) the person entitled to consent to the damage to the property concerned had so consented; or
(b) the defendant believed that:
(i) the person whom the defendant believed was entitled to consent to the damage of the property concerned had so consented; or
(ii) such a person would have so consented if that person had known about the damage to be caused to the property and its circumstances.
Note for section 248
Part IIAA, Division 3, provides for other circumstances in which there is no criminal liability.
(1) A person is not criminally responsible for an offence against this Division (other than section 242) if, at the time of the conduct constituting the offence, the person believed:
(a) that the person had a right or interest in the property concerned; and
(b) the right or interest authorised the person to engage in the conduct.
(2) For this section, a right or interest in property includes a right or privilege in or over land or waters, whether created by a grant, licence or otherwise.
Note for section 249
Part IIAA, Division 3, provides for other circumstances in which there is no criminal liability.
Division 7 Forgery and other similar offences
In this Division:
"false document", see section 251.
"public duty" means a duty of a public officer.
(1) For this Division, a document is a false document only if the document, or any part of the document, purports:
(a) to have been made in the form in which it is made by a person who did not make it in that form; or
(b) to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or
(c) to have been made in the terms in which it is made by a person who did not make it in those terms; or
(d) to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or
(e) to have been changed in any way by a person who did not change it in that way; or
(f) to have been changed in any way on the authority of a person who did not authorise it to be changed in that way; or
(g) to have been made or changed by an existing person who did not exist; or
(h) to have been made or changed on the authority of an existing person who did not exist; or
(i) to have been made or changed on a date on which, at a time or place at which, or otherwise in circumstances in which it was not made or changed.
(2) For this Division, making a false document includes changing the document so as to make it a false document under subsection (1) (whether or not it already was false in some other way).
(3) For this Division, a document that purports to be a true copy of another document is to be treated as if it were the original document.
For this Division, a reference to inducing a person to accept a document as genuine includes a reference to causing a computer, machine or electronic device to respond to the document as if it were genuine.
(1) A person commits an offence if:
(a) the person ( person A ) makes a false document; and
(b) person A engages in the conduct mentioned in paragraph (a) with the intention:
(i) that person A or another person ( person B ) will use the document to induce another person ( person C ) to accept it as genuine; and
(ii) because person C accepts it as genuine – that person A, person B or another person obtains a gain, causes a loss or influences the exercise of a public duty; and
(c) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 10 years.
Note for subsection (1)(c)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a).
(3) To avoid doubt, for subsection (1)(b)(i), it is not necessary to prove an intention to induce a particular person to accept the false document as genuine.
(1) A person commits an offence if:
(a) the person ( person A ) uses a document; and
(b) the document is a false document and person A has knowledge of that circumstance; and
(c) person A engages in the conduct mentioned in paragraph (a) with the intention:
(i) to induce another person ( person B ) to accept it as genuine; and
(ii) because person B accepts it as genuine – that person A or another person obtains a gain, causes a loss or influences the exercise of a public duty; and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 10 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(a).
(3) To avoid doubt, for subsection (1)(c)(i), it is not necessary to prove an intention to induce a particular person to accept the false document as genuine.
(1) A person commits an offence if:
(a) the person ( person A ) has a document in person A's possession; and
(b) the document is a false document and person A has knowledge of that circumstance; and
(c) person A engages in the conduct mentioned in paragraph (a) with the intention:
(i) to induce another person ( person B ) to accept it as genuine; and
(ii) because person B accepts it as genuine – that person A or another person obtains a gain, causes a loss or influences the exercise of a public duty; and
(d) the conduct mentioned in paragraph (a) is dishonest.
Maximum penalty: Imprisonment for 10 years.
Note for subsection (1)(d)
See section 43AGA in relation to the meaning of and fault element for dishonest conduct.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(a).
(3) To avoid doubt, for subsection (1)(c)(i), it is not necessary to prove an intention to induce a particular person to accept the false document as genuine.
Division 8 Preparation for forgery
(1) A person commits an offence if:
(a) the person makes or adapts a device, material or other thing; and
(b) the device, material or other thing is designed or adapted to make a false document and the person has knowledge of that circumstance; and
(c) the person engages in the conduct mentioned in paragraph (a) with the intention:
(i) to use the device, material or other thing to commit an offence against section 253; or
(ii) for another person to use the device, material or other thing to commit an offence against section 253.
Maximum penalty: Imprisonment for 7 years.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(a).
(1) A person commits an offence if:
(a) the person possesses a device, material or other thing; and
(b) the device, material or other thing is designed or adapted to make a false document and the person has knowledge of that circumstance; and
(c) the person engages in the conduct mentioned in paragraph (a) with the intention:
(i) to use the device, material or other thing to commit an offence against section 253; or
(ii) for another person to use the device, material or other thing to commit an offence against section 253.
Maximum penalty: Imprisonment for 7 years.
(2) Subsection (1)(c) is the fault element for the conduct in subsection (1)(a).
(3) A person commits an offence if:
(a) the person intentionally possesses a device, material or other thing; and
(b) the device, material or other thing is designed or adapted to make a false document and the person has knowledge of that circumstance.
Maximum penalty: Imprisonment for 2 years.
(4) It is a defence to a prosecution for an offence against subsection (3) if the defendant has a reasonable excuse.
Note for section 257
The defendant has an evidential burden in relation to the matters in subsection (4) (see section 43BU of the Criminal Code).
Part VIIA Miscellaneous offences
(1) In this Division, unless the contrary intention appears:
"computer" includes:
(a) a single computer, whether or not connected to a network or communications system; and
(b) more than one computer forming or connected to a network or communications system.
"data" includes:
(a) information in any form; and
(b) any program or part of a program.
"data held in a computer" includes:
(a) data entered or copied into the computer;
(b) data held in any removable data storage device that may be used in, or attached to, the computer; and
(c) data held in a data storage device on a computer network of which the computer forms part.
"data storage device" means any thing containing or designed to contain data that may be used in a computer and includes:
(a) a device that may be used to gain access to, or perform a function on, a communications system or telecommunications network; and
(b) an internet web site.
"electronic communication" means a communication of information in any form by means of guided or unguided electrical or electromagnetic energy.
"telecommunications network" means a system or series of systems for carrying electronic communications.
(2) For the purposes of an offence against this Division, a person accesses data or causes modification of data or impairment of electronic communication if the person's conduct substantially contributes to the access, modification or impairment.
In this Division:
(a) access to data held in a computer means:
(i) the display of the data by the computer or any other output of the data from the computer;
(ii) the recording or monitoring of the data by a remote computer or other device;
(iii) the copying or moving of the data to any other place in the computer or to a data storage device; or
(iv) if the data is a program – the execution of the program;
(b) modification of data held in a computer means:
(i) the alteration or removal of the data; or
(ii) an addition to the data;
(c) impairment of electronic communication to or from a computer includes:
(i) the prevention of any such communication; or
(ii) the impairment of any such communication on an electronic link or network used by the computer,
but only if the prevention or impairment is caused (whether directly or indirectly) by the execution of a function of a computer; and
(d) use of data includes:
(i) use by a third party; and
(ii) use at the time the data was accessed or at a later time.
(1) A person who unlawfully accesses data held in a computer with intent to:
(a) cause loss or harm to the person entitled to the data or a third person; or
(b) gain a benefit or advantage, whether personally or for a third party,
is guilty of an offence and is liable to imprisonment for 10 years.
(2) A person who unlawfully uses data that has been accessed unlawfully, whether or not he or she is the person who gained the access to the data, is guilty of an offence and is liable to imprisonment for 10 years.
(1) A person:
(a) who unlawfully causes any modification of data held in a computer; and
(b) who intends by the modification to impede access to, or to adversely affect the reliability, security or operation of, data held in a computer,
is guilty of an offence and is liable to imprisonment for 10 years.
(2) A person causes modification of data held in a computer if the person sets in train a course of events that results in the modification, even if the person did not himself or herself access the particular computer in which the data is modified but the modification would not have occurred but for the person's action.
A person:
(a) who unlawfully causes impairment of electronic communication to or from a computer; and
(b) who intends to impair electronic communication to or from the computer or any other computer,
is guilty of an offence and is liable to imprisonment for 10 years.
(1) A person who unlawfully uses access time to a computer or telecommunications network, the access being charged to another person, is guilty of an offence and is liable to imprisonment for 3 years.
(2) A person who unlawfully makes available for use by another person access time to a computer or telecommunications network, the access being charged to a third person, is guilty of an offence and is liable to imprisonment for 3 years.
A person is guilty of an offence against this Division:
(a) if the person does an unlawful act within the Territory that leads to the unlawful access to, or modification of, data held in a computer or impairment of electronic communication, irrespective of whether or not the affected computer or data storage device is in the Territory; or
(b) if the person does an unlawful act, whether within the Territory or not, that leads to the unlawful access to, or modification of, data held in a computer or impairment of electronic communication, where the affected computer or data storage device is in the Territory.
Division 2 Unlawfully obtaining confidential information
Any person who unlawfully abstracts any confidential information from any register, document, computer or other repository of information with intent to cause loss to a person or with intent to publish the same to a person who is not lawfully entitled to have or to receive it, or with intent to use it to obtain a benefit or advantage for the person or another, is guilty of an offence and is liable to imprisonment for 3 years.
Part VIII Attempts and preparation to commit offences: conspiracy: accessories after the fact
Division 1 Attempts and preparation to commit offences
(1) Any person who attempts to commit an offence is guilty of an offence.
(2) If the offence attempted to be committed is an indictable offence he is, unless otherwise stated, guilty of an indictable offence.
(3) If a charge of the offence attempted to be committed may be heard and determined summarily, a charge of the offence of attempting to commit the offence may also be heard and determined summarily.
(1) Any person who attempts to commit an indictable offence of such a kind that a person found guilty of it is liable to the punishment of imprisonment for life or of imprisonment for 14 years or longer is liable, if no other punishment is provided, to imprisonment for 7 years.
(2) Any person who attempts to commit any other offence is liable, if no other punishment is provided, to a punishment equal to one-half of the greatest punishment to which an offender found guilty of the offence that he attempted to commit is liable.
(1) Any person who attempts to procure another to do any act, make any omission or cause any event, whether in the Territory or elsewhere, of such a nature that, if the act were done or the omission were made or the event were caused, an offence would thereby be committed under the laws of the Territory or the laws in force in the place where the act, omission or event is proposed to be done, made or caused whether by himself or by that other person, is guilty of an offence of the same kind and is liable to the same punishment as if he had himself attempted to do the same act, make the same omission or cause the same event in the Territory.
(2) If the act, omission or event is proposed to be done, made or caused at a place not in the Territory, the punishment cannot exceed that which he would have incurred under the laws in force where the act, omission or event was proposed to be done, made or caused if he had himself attempted to do the proposed act, make the proposed omission or cause the proposed event.
(3) A prosecution with respect to a matter referred to in subsection (2) cannot be instituted except at the request of the government of the state having jurisdiction in the place where the act, omission or event was proposed to be done, made or caused.
Any person who makes or knowingly has in his possession any explosive substance or any dangerous or noxious thing with intent by means thereof to commit, or for the purpose of enabling any other person by means thereof to commit, an indictable offence is guilty of an offence and is liable to imprisonment for 5 years.
Division 2 Conspiracy: accessories after the fact
Any person who conspires with another to commit an indictable offence, or to do any act, make any omission or cause any event in any part of the world that, if done in the Territory, would be an indictable offence and that is an offence under the laws in force in the place where it is proposed to be done, is guilty of an offence and is liable, if no other punishment is provided, to imprisonment for 7 years; or, if the greatest punishment to which a person found guilty of the offence in question is liable is less than imprisonment for 7 years, then to such lesser punishment.
Any person who conspires with another to commit a summary offence or to do any act, make any omission or cause any event in any part of the world that if done in the Territory would be a simple offence and that is an offence under the laws in force in the place where it is proposed to be done, is guilty of an offence and is liable to imprisonment for one year.
Any person who conspires with another by deception or any fraudulent conduct to affect the market price of anything publicly sold or to defraud the public or any person, whether a particular person or not, or to extort any property from any person is guilty of an offence and is liable to imprisonment for 7 years.
(1) Any person who conspires with another to charge any person or cause any person to be charged with an offence, whether alleged to have been committed in the Territory or elsewhere, knowing that such person is innocent of the alleged offence is guilty of an offence.
(2) If the offence is such that a person found guilty of it is liable to be sentenced to imprisonment for life the offender is liable to imprisonment for life.
(3) In any other case the offender is liable to imprisonment for 7 years.
Any person who conspires with another to obstruct, prevent, pervert or defeat the course of justice is guilty of an offence and is liable to imprisonment for 15 years.
Any person who conspires with another to carry out any seditious enterprise is guilty of an offence and is liable to imprisonment for 3 years.
Any person who conspires with another:
(a) to prevent or defeat the execution or enforcement of any statute law;
(b) to prevent or obstruct the free and lawful disposition of any property by the owner thereof for its fair value; or
(c) to prevent or obstruct, by means of any conduct that, if engaged in by an individual person, would constitute an offence on his part, the free and lawful exercise of the trade, profession or occupation of any person,
is guilty of an offence and is liable to imprisonment for 3 years.
Notwithstanding anything contained in section 293, no act done, omission made or event caused by any 2 or more persons in contemplation or furtherance of any industrial dispute and no agreement or combination by any 2 or more persons to do any act, make any omission or cause any event or to procure any act to be done, omission to be made or event to be caused in contemplation or furtherance of any industrial dispute, shall render any of such persons guilty of an offence if such act, omission or event when done, made or caused by an individual person would not have rendered such person guilty of an offence.
Any rule of law under which a husband and wife are incapable of criminally conspiring together is abolished.
It shall not be a defence to a charge of conspiracy that the person with whom the accused is alleged to have conspired:
(a) has not been prosecuted;
(b) has been found guilty of a different offence;
(c) is not amenable to justice;
(d) has been acquitted; or
(e) lacked the capacity to commit an offence.
If a person conspires to engage in conduct that would constitute the offence of conspiracy under any 2 or more of the foregoing provisions, he is guilty of only one conspiracy so long as such conduct is part of one agreement or continuous conspiratorial relationship.
(1) Any person who becomes an accessory after the fact to murder or terrorism is guilty of an indictable offence and is liable to imprisonment for 14 years.
(2) Any person who becomes an accessory after the fact to any other offence of such a nature that the offender may be sentenced to imprisonment for a term greater than 3 years is guilty of an indictable offence and is liable, if no other punishment is provided, to imprisonment for 2 years.
(3) Any person who becomes an accessory after the fact to any other offence of such a nature that the offender may be sentenced to imprisonment for one year, is guilty of an offence and is liable to a punishment equal to one-half of the greatest punishment to which the perpetrator is liable on being found guilty.
(4) If a charge of the offence to which the person is an accessory may be heard and determined summarily, a charge of the offence of being an accessory to the offence may also be heard and determined with summarily.
Division 1 Preliminary proceedings: change of place of trial: no
true bill
The jurisdiction of courts of justice with respect to hearing and determining charges of offences is set forth in the laws relating to the constitution and jurisdiction of those courts respectively.
(1) When a person has been committed for trial at a court held at any place, whether he has been admitted to bail or not, the Supreme Court or a Judge may, on the application of the Crown or of the accused person and upon good cause shown, order that the trial shall be held at some other place.
(2) When an indictment has been presented against any such person the court may, on the application of the Crown or the accused person and upon good cause shown, order that the trial shall be held at some place other than that named in the indictment and at a time to be named in the order.
(4) The obligations of any persons who are bound to attend as witnesses or to produce any documents are in like manner to be deemed to be altered to the same time and place upon their being given written notice to that effect.
(1) When a person charged with an indictable offence has been committed for trial and it is not intended to put him on his trial a Crown Law Officer shall:
(a) issue a certificate to that effect; and
(b) deliver it to the person committed:
(i) if the person is not in custody, by giving it to him personally or sending it by post to his last known address; or
(ii) if the person is in custody, by sending it by post or giving it to the person who has custody of him.
(2) If the committed person has been released on bail, upon the issue of the certificate, the bail undertaking and any conditions of bail shall cease to have effect and any security or money deposited thereunder shall be returned to the person who deposited it.
(3) If the committed person has not been released on bail, upon the delivery of the certificate, the warrant of commitment shall cease to have effect.
(1) When a person charged with an indictable offence has been committed for trial and it is intended to put him on his trial for the offence the charge is to be reduced to writing in a document that is called an indictment.
(2) The indictment is to be signed by a Crown Law Officer.
When a person charged with an indictable offence has been committed for trial and if, in the opinion of the person responsible for the presentation of the indictment, the evidence produced at the preliminary proceedings is such that he ought to be charged with some further or other offence he may present an indictment charging such further or other offence.
A Crown Law Officer may sign an indictment against any person for any offence whether the accused person has been committed for trial or not.
(1) When an indictment has been presented against a person who is not in custody and has not been committed for trial or held to bail to attend to be tried upon the charge set forth in the indictment, or who does not appear to be tried upon the charge set forth in the indictment, a judge of the court in which the indictment is presented may issue a warrant under his hand to arrest the accused person and bring him before a the Local Court.
(2) The Local Court may commit him into the custody of the Commissioner of Correctional Services until he can be tried on the indictment or may, in a proper case, admit him to bail to attend to be tried on the indictment.
(1) A Crown Law Officer may inform any court, by writing under his hand, that the Crown will not further proceed upon an indictment, or in relation to a charge contained in an indictment, then pending in that court.
(2) When such information is given to the court the accused person is to be discharged from any further proceedings upon that indictment or in relation to the charge.
Except as otherwise expressly provided an indictment must charge one offence against one person.
The commencement of an indictment shall indicate the name of the person by whom it is signed and the authority of that person to sign it.
(1) An indictment shall contain a statement of the offence charged together with such particulars as may be necessary to give reasonable information as to the nature of the charge.
(2) If more than one offence is charged each offence shall be set out in a separate paragraph called a count and numbered consecutively.
(3) The statement of the offence shall describe the offence shortly in ordinary language in which the use of technical terms is unnecessary and it need not state all the elements of the offence, but it shall contain a reference to the section and the enactment defining the offence.
(4) If any circumstance of aggravation is intended to be relied upon it shall be charged in the indictment.
(1) A description of property in an indictment may be in ordinary language and shall be such as to indicate with reasonable clarity the property referred to and, if the property is so described, it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property.
(2) Where property is vested in more than one person and the owners of the property are referred to in an indictment it is sufficient to describe the property as owned by one of those persons by name and others and if the persons owning the property are a body of persons with a collective name it is sufficient to use the collective name without naming any individual.
The description or designation in an indictment of the accused person or of any other person to whom reference is made shall be such as is reasonably sufficient to identify him without necessarily stating his correct name or his address or occupation and if, owing to the name of the person being unknown or for any other reason, it is impossible or impracticable to give such a description or designation, such description or designation shall be given as is reasonably practicable in the circumstances or he may be described as "a person unknown".
(1) Any number of persons charged with committing or with counselling or procuring the commission of the same offence, although at different times, or of being accessories after the fact to the same offence, although at different times, and any number of persons charged with receiving, although at different times, any property that has been obtained by means of an indictable offence, or by means of an act that, if it had been done in the Territory, would be an indictable offence and that is an offence under the laws in force in the place where it was done, or any part of any property so obtained, may be charged with substantive offences in the same indictment and may be tried together notwithstanding that the perpetrator or the person who so obtained the property is not included in the same indictment or is not amenable to justice.
(2) Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together.
(1) Charges for more than one offence may be joined in the same indictment against the same person, whether the person is being proceeded against separately or with another or others, if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.
(1A) To avoid doubt, charges for more than one offence may be joined in the same indictment even if the offences are alleged to have been committed against different persons.
(2) Charges of theft of any property or, alternatively, of receiving that property may be joined in the same indictment.
In an indictment against a person for an assault the accused person may be charged and proceeded against notwithstanding that such assault is alleged to be constituted by a number of assaults provided they were committed on the same person in the prosecution of a single purpose or at about the same time.
Without in any way limiting the power of the court to order an indictment to be amended, an indictment shall not be quashed by reason of formal defect if it is shown that such formal defect would not cause surprise or uncertainty to the accused person as to the true nature of the charge or charges brought against him.
(1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective or that there appears to be a variance between the indictment and the evidence, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case if it is shown that the required amendment can be made without injustice.
(2) Where an indictment is so amended a note of the order for amendment shall be endorsed on the indictment and the indictment shall be treated for the purposes of the trial and for the purposes of all proceedings in connection therewith as having been presented in the amended form.
The court may in any case direct particulars to be delivered to the accused person of any matter alleged in the indictment and unless they are delivered he is entitled to be discharged.
The provisions of this Division relating to indictments apply to complaints preferred against offenders, the charges against whom are heard and determined summarily.
Division 3 Effect of indictment: alternative verdicts
(1) Upon an indictment charging a person with an offence committed with circumstances of aggravation he may be found guilty alternatively of the offence charged without any of such circumstances of aggravation or of the offence charged with any other circumstances of lesser aggravation contained in the section defining that offence.
(2) Upon an indictment charging a person with an offence of such a nature that he may be found guilty alternatively of some other offence, he may be found guilty of that other offence with or without any circumstance of aggravation prescribed for that offence.
(1) On an indictment charging a person with murder, the person may alternatively be found guilty of manslaughter or an offence against section 161A, but not of any other offence unless as otherwise expressly provided.
(2) On an indictment charging a person with manslaughter, the person may alternatively be found guilty of an offence against section 161A, 174F(1) or 174FC(1).
Upon an indictment charging a person with murder or manslaughter, if it appears that the person alleged to have been killed was a child of which a woman had recently been delivered, the accused person may be found guilty alternatively of the offence of preventing the child from being born alive by an act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, or of the offence of disposing of the dead body of a child with the intention of concealing the child's birth.
Upon an indictment charging a person with an offence against the person other than murder or manslaughter, if he is found not guilty of the offence charged or any other offence of which he might otherwise be found guilty upon that indictment by reason of the provisions of section 31 or intoxication, other than intoxication of such a nature that the provisions of section 43C apply, he may be found guilty alternatively of an offence against Part VI, Division 3A, Subdivision 2.
(1) Upon an indictment charging a person with an offence of which causing an event is an element he may be found guilty alternatively of any offence of which causing an event of a similar, but less injurious, nature is an element.
(2) Upon an indictment charging a person with an offence of which an intent to cause an event is an element he may be found guilty alternatively of any offence of which the unlawful causing of that event is an element.
Upon an indictment charging a person with a property offence he may be found guilty of having committed that offence or any other offence available upon that indictment with respect to some, but not all, of the property described in the indictment.
(1) A person charged on indictment with the offence of theft in relation to property may alternatively be found guilty of obtaining the property by deception.
(2) A person charged on indictment with the offence of obtaining property by deception may alternatively be found guilty of theft of the property.
(1) Subsection (2) applies in relation to a person who is charged on indictment with any of the following offences:
(a) theft of property;
(b) receiving property;
(c) theft of property or, alternatively, receiving the same property.
(2) The person may be found guilty of:
(a) theft of the property; or
(b) receiving the property; or
Upon an indictment charging a person with counselling or procuring the commission of an offence he may be found guilty alternatively of counselling or procuring the commission of any other offence of such a nature that a person may be found guilty of it upon an indictment charging him with committing the offence of which the accused person is alleged to have counselled or procured the commission.
(1) Upon an indictment charging a person with committing an offence he may be found guilty alternatively of attempting to commit that offence, or of attempting to commit any other offence of which he might be found guilty upon the indictment.
(2) Upon an indictment charging a person with procuring the commission of an offence he may be found guilty alternatively of attempting to procure the commission of that offence, or of attempting to procure the commission of any other offence of such a nature that a person may be found guilty of it upon an indictment charging him with committing the offence of which the accused person is alleged to have procured the commission.
(3) Upon an indictment charging a person with attempting to commit an offence he may be found guilty alternatively of attempting to commit any other offence of such a nature that a person may be found guilty of it upon an indictment charging him with committing the offence that the accused person is alleged to have attempted to commit.
(4) Upon an indictment charging a person with attempting to procure the commission of an offence he may be found guilty alternatively of attempting to procure the commission of any other offence of such a nature that a person may be found guilty of it upon an indictment charging him with committing the offence of which the accused person is alleged to have attempted to procure the commission.
(5) Upon an indictment charging a person with attempting to procure another to do an act, make an omission or cause an event of such a nature that if the act had been done, the omission had been made or the event had been caused an offence would thereby have been committed he may be found guilty alternatively of attempting to procure that other person to do any other act, make any other omission or cause any other event of such a nature that if the act had been done, the omission had been made or the event had been caused an offence would thereby have been committed, such last-mentioned offence being itself of such a nature that a person may be found guilty of it upon an indictment charging him with doing the act, making the omission or causing the event that the accused person is alleged in the indictment to have attempted to procure that other person to do, make or cause.
(1) Upon an indictment charging a person with an offence if the evidence establishes that he is guilty of another offence of such a nature that upon an indictment charging him with it he might have been found guilty of the offence with which he is actually charged, he may be found guilty of the offence with which he is so charged.
(2) A person so tried is not liable to be afterwards prosecuted for the offence so established by the evidence unless the presiding Judge thinks fit to discharge the jury from giving any verdict and to direct the accused person to be indicted for that offence; in which case he may be dealt with in all respects as if he had not been put upon his trial for the offence with which he is actually charged.
Upon an indictment charging a person with an offence relating to elections he may be found guilty alternatively of an offence relating to elections a charge of which may be heard and determined summarily.
A person charged on indictment with the offence of theft in relation to property that is an animal may alternatively be found guilty of an offence under regulation 23 of the Livestock Regulations 2009 .
Upon an indictment charging 2 or more persons jointly with an indictable offence of which the receiving of any property is an element if the evidence establishes that one or more of them separately received any part or parts of the property under such circumstances as to constitute an indictable offence, such one or more of the accused persons may be found guilty of the offence or offences so established by the evidence.
It is the duty of the court to determine at the conclusion of the evidence whether or not, upon the evidence, any other charge is in fact available for the consideration of the jury.
Division 4 Alibi, expert evidence, trial adjournment, pleas and
practice
(1) An accused person shall not upon his trial on indictment, without the leave of the court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Director of Public Prosecutions written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice:
(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and
(b) the court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Director of Public Prosecutions of that name and address.
(2) A notice under this section shall be duly given if it is delivered to or left at the office of the Director of Public Prosecutions or sent by certified mail addressed to him at his office.
(3) The court shall not refuse leave under this section if it appears to the court that the accused person was not, upon his committal for trial, informed by that court of the requirements of this section.
(4) Evidence tending to disprove an alibi may, subject to a direction by the court, be given before or after evidence is given in support of the alibi.
(5) A notice purporting to be given under this section on behalf of the accused person by his solicitor shall, until the contrary is proved, be deemed to be given with the authority of the accused person.
(6) In this section:
"evidence of an alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.
"the prescribed period" means the period of 14 days after the date of the committal for trial of the accused person.
(1) This section applies if a person (the accused ) is to be tried in a court on indictment.
(2) If the accused intends to adduce any expert evidence during the trial , the accused must give written notice in accordance with this section to the court and prosecution:
(a) at least 14 days before the start of the trial; or
(b) within another time allowed by the court.
(3) The notice:
(a) must specify:
(i) the name, address and qualifications of the witness who is to give the expert evidence; and
(ii) the substance of the expert evidence; and
(b) must be accompanied by a copy of any existing document containing opinions or findings (or both) made by the witness that the accused intends to rely on as all or part of the expert evidence.
(4) If a document mentioned in subsection (3)(b) comes into existence after the notice was given but before the start of the trial, the accused must give a copy of it to the court and prosecution before the start of the trial.
(5) For subsections (2) and (4), the notice to the prosecution must be served on the Director of Public Prosecutions (the Director ) by:
(a) giving it to the Director or someone authorised by the Director to receive the notice; or
(b) sending it by certified mail addressed to the Director at the address of the office of the Director .
(6) Subsections (2) to (5) have effect except as allowed by the court.
(7) If the accused contravenes any provision of this section:
(a) the court may, on application by the prosecution:
(i) if the jury has been empanelled – discharge the jury and adjourn the trial; or
(ii) otherwise – adjourn the trial; and
(b) the court or prosecution may make comment to the jury in relation to the contravention (but must not suggest that, because of the contravention, the accused is guilty of the offence to which the trial relates).
(1) This section applies:
(a) if a person (the accused ):
(i) is to be tried for an offence in a court on indictment; and
(ii) intends to adduce expert psychiatric or medical evidence relating to the state of mind, or a medical condition, of the accused at the time the alleged offence was committed; and
(b) whether or not notice of the accused's intention has been given under section 331A.
(2) The court may, on application by the prosecution, require the accused to be examined by a psychiatrist, or other appropriate expert, (the independent expert ) nominated by the prosecution and approved by the court.
(3) The prosecution must pay the costs of the examination.
(4) The court may, on application, allow the independent expert to be called to give evidence in chief for the prosecution or defence in relation to the results of the examination.
(5) If the accused refuses to be examined, at the trial:
(a) the prosecution may cross–examine the accused and any expert witness called by the accused, as to the possible reasons for the accused's refusal to be examined; and
(b) the court or prosecution may make comment to the jury in relation to the refusal (but must not suggest that, because of the refusal, the accused is guilty of the offence to which the trial relates).
(6) This section does not affect the operation of Part IIA.
(1) A person committed for trial may, orally or in writing, at any time during the sittings of the court to which he has been committed or any subsequent sittings, make application to the court for an indictment to be presented against him in order that he may be brought to his trial.
(2) An application pursuant to this section shall be dealt with in open court and where the application is in writing may be dealt with in the absence of the applicant.
(3) The court may, upon an application pursuant to this section, order that:
(a) the application be adjourned for such period as it thinks fit;
(b) an indictment be presented within such period as it thinks fit; or
(c) the applicant be discharged.
(1) A person who has not been committed for trial and who is not in custody or admitted to bail, but against whom an indictment has been presented, may apply at any time to the court in which the indictment was presented to be brought to his trial.
(2) Upon such an application the court may order that:
(a) the application be adjourned for such period as it thinks fit;
(b) the trial be held during such sittings of the court as it thinks fit; or
(c) the applicant be discharged.
(1) The court to which a person has been committed or remanded for trial on indictment or before which an indictment is presented may, if it thinks fit, adjourn the trial and may remand the accused person accordingly.
(2) A trial may be adjourned whether or not:
(a) the accused person is present; or
(b) the accused person has been called upon to plead to the indictment; or
(c) a jury has been empanelled; or
(d) evidence has been given.
(3) The Crown shall, where it is proposed to make application for an adjournment in the absence of an accused person who is detained in a place of legal detention, notify in writing that accused person:
(a) that the application is to be made and the nature, date, time and place thereof; and
(b) that he may furnish to the court a statement in writing in relation to the application; and
(c) that he may be represented by his counsel on the hearing of the application.
(4) In this section "adjourn the trial" includes postpone the trial in a case where the accused person has not been called upon to plead to the indictment.
(1) Where the trial of a person charged or to be charged with an offence on indictment is adjourned, the court may enlarge the notice given to any witnesses.
(2) Where upon the adjournment of a trial a notice to a witness is enlarged, the witness is bound to attend to give evidence at the time and place to which the trial is adjourned, without being given a fresh notice, in the same manner as if he had been bound originally by the notice to give evidence at the time and place to which the trial is adjourned.
(1) An accused person is to be informed in open court of the offence with which he is charged as set forth in the indictment and may be called upon to plead to the indictment and to say whether he is guilty or not guilty of the charge.
(2) The trial is deemed to begin and the accused person is deemed to be brought to trial when he is so called upon.
(3) Nothing in this section prevents different Judges taking the plea of an accused person and presiding at the trial of the issues by the jury.
(1) Where an indictment is presented against a corporation, the corporation may be present in court by its representative and it may, on arraignment, enter a plea in writing by its representative.
(2) Any plea so entered by the representative shall for all purposes be taken to be a plea entered by the corporation.
(3) If the corporation is not present in court by its representative or if, though it is so present, it does not enter a plea in writing by its representative, the court shall order a plea of not guilty to be entered on behalf of the corporation.
(4) A plea so entered has the same effect as if it had been actually pleaded and the trial of the corporation may proceed accordingly.
(5) In respect of a trial, any requirement by law that anything shall be done in the presence of the accused person or shall be read or said to or asked of the accused person shall, in the case of a corporation present in court by its representative, be construed as a requirement that that thing shall be done in the presence of the representative or read or said to or asked of the representative.
(6) If the corporation is not present in court by its representative it shall not be necessary for the thing to be done or read or said or asked.
(7) Without limiting subsection (1) or section 360 where, in respect of a trial, anything is required to be done or said by the accused person personally, it may, in the case of a corporation present in court by its representative, be done or said by the representative and anything so done or said shall for all purposes be taken to be done or said by the corporation.
(8) In this section "representative" means a person appointed by the corporation to represent it for the purposes of this section; but the person so appointed is not, by virtue only of being so appointed, qualified to act on behalf of the corporation before the court for any other purpose.
(9) A representative need not be appointed under the seal of the corporation and a statement in writing purporting to be signed by a managing director of the corporation or by any other person, by whatever name called, having, or being one of the persons having, the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section shall be admissible without further proof as prima facie evidence that that person has been so appointed.
When an indictment is presented against any person the court is required, upon his application, to order a copy of the indictment to be delivered to him without fee.
(1) The accused person may before pleading apply to the court:
(a) to quash the indictment on the ground that it is calculated to prejudice or embarrass him in his defence to the charge or that it is formally defective; or
(b) to stay the proceedings on the ground that they are vexatious or harassing.
(2) Upon such motion the court may quash the indictment, order it to be amended in such manner as the court thinks just, stay the proceedings or refuse the motion.
If the accused person says that he is wrongly named in the indictment the court may, on being satisfied by affidavit or otherwise of the error, order the indictment to be amended.
(1) Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any offence or offences charged in an indictment the court may order a separate trial of any count or counts in the indictment.
(1A) Subsection (1) applies in relation to a trial subject to sections 341A and 341B.
(2) The court may discharge a jury from giving a verdict on the count or counts directed to be tried separately.
(3) The procedure on the separate trial of a count shall be the same in all respects as if the count had been set out in a separate indictment.
(4) The court may adjourn a separate trial, remand the accused person and make such orders as to bail and as to the enlargement of notices to witnesses and otherwise as the court thinks fit.
(5) In this section "adjourn" includes postpone in a case where the accused person has not been called upon to plead to the indictment.
(1) Despite any rule of law to the contrary, if an accused person is charged with more than one sexual offence in the same indictment, it is presumed that the charges are to be tried together.
(2) The presumption is not rebutted merely because:
(a) evidence on one charge is not admissible on another charge; or
(b) there is a possibility that evidence may be the result of collusion or suggestion.
(3) In this section:
"sexual offence", see section 3 of the Sexual Offences (Evidence and Procedure) Act 1983 .
(1) Despite any rule of law to the contrary, if an accused person is charged with more than one domestic violence offence in the same indictment, it is presumed that the charges are to be tried together.
(2) The presumption is not rebutted merely because:
(a) evidence on one charge is not admissible on another charge; or
(b) there is a possibility that evidence may be the result of collusion or suggestion.
(3) In this section:
domestic violence offence means:
(a) an offence that is a DVO contravention offence, as defined in section 4 of the Domestic and Family Violence Act 2007 ; or
(b) an offence constituted by, or involving, conduct that is domestic violence, as defined in section 5 of the Domestic and Family Violence Act 2007 .
(1) If the accused person does not apply to quash the indictment or move for a separate trial, he must either plead to it, or demur to it on the ground that it does not disclose any offence cognizable by the court.
(2) If he pleads he may plead:
(a) that he is guilty of the offence charged in the indictment or, with the consent of the Crown, of any other offence of which he might be found guilty upon the indictment;
(b) that he is not guilty;
(c) that he has already been found guilty or acquitted of:
(i) the same offence;
(ii) a similar offence;
(iii) an offence of which he might be found guilty upon the trial of the offence charged; or
(iv) an offence upon the trial of which he could have been found guilty of the offence charged;
(d) that he has received the royal pardon for the offence charged; or
(e) that the court has no jurisdiction to try him for the offence charged.
(3) Two or more pleas may be pleaded together except that the plea of guilty cannot be pleaded with any other plea to the same charge.
(4) An accused person may plead and demur together.
A person charged with the unlawful publication of defamatory matter who sets up that the defamatory matter is true must plead that matter specially and may plead it with any other plea except the plea of guilty.
(1) When a person has been committed for sentence for an indictable offence he is to be called upon to plead to the indictment in the same manner as other persons and may plead either that he is guilty of the offence charged in the indictment or, with the consent of the Crown, of any other offence of which he might be found guilty upon the indictment.
(2) If he pleads that he is not guilty the court, upon being satisfied that he duly admitted before the Local Court that he was guilty of the offence charged in the indictment, may direct a plea of guilty to be entered notwithstanding his plea of not guilty and a plea so entered has the same effect as if it had been actually pleaded.
(3) If, and notwithstanding that the accused person pleads that he is guilty, it appears to the court upon examination of the depositions of the witnesses and any other information given to it that a plea of not guilty ought to be entered, the plea of not guilty is to be entered.
(4) A person who has been committed for sentence may plead any of the other pleas mentioned in section 342.
If an accused person who has been committed for trial or proceeded against by way of section 300, on being called upon to plead to an indictment, will not plead or answer directly to the indictment the court may, if it thinks fit, order a plea of not guilty to be entered and a plea so entered has the same effect as if it had been actually pleaded.
In a plea that the accused person has already been found guilty or acquitted it is sufficient to state that he has been lawfully found guilty or acquitted of the offence charged in the indictment or of the offence of which he alleges that he has been found guilty or acquitted and, in the latter case, to describe the offence by any term by which it is commonly known.
Upon a plea that the accused person has already been found guilty or acquitted or has received the royal pardon or to the jurisdiction of the court, the court is to proceed to determine the matter itself in such manner and upon such information as it thinks fit.
Subject to section 348A, if the accused person pleads that he is not guilty he is by such plea, without any further form, deemed to have demanded that the issues raised by such plea shall be tried by a jury and is entitled to have them tried accordingly.
(1) If:
(a) an accused person pleads not guilty of an offence; and
(b) the Crown does not intend to adduce any evidence in respect of the offence,
the Crown must, before a jury is empanelled, inform the court of its intention.
(2) On being informed by the Crown under subsection (1), the court must make a finding that the accused is not guilty of the offence.
(3) A finding of not guilty under subsection (2) has effect as if it were a not guilty verdict of a jury on the offence.
(1) When an accused person demurs only and does not plead any plea the court is to proceed to hear and determine the matter forthwith.
(2) If the demurrer is overruled he is to be called upon to plead to the indictment.
(3) When an accused person pleads and demurs together it is in the discretion of the court whether the plea or demurrer shall be first disposed of.
(4) No joinder in demurrer is necessary.
When 2 or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may, at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons or any of them shall be had separately from the trial of the other or others of them and for that purpose may, if a jury has been empanelled, discharge the jury from giving a verdict as to any of the accused persons.
The law respecting the qualifications of jurors and the summoning of jurors to attend for the trial of persons charged with offences and the challenges allowed to such persons is set forth in the laws relating to juries and jurors.
(1) Subject to subsection (3), a person who is to be tried on indictment (the accused ) must be given a list of the persons on the jury panel for the trial containing:
(a) the full name of each person; and
(b) if requested by the accused – a description of each person.
(2) The list must be given to the accused at least 2 days before the accused is called on to plead to the indictment.
(3) The court may, if it considers it appropriate, refuse to give the list to the accused.
When an accused person has demanded to be tried by a jury the proper officer of the court is to inform him in open court that the persons whose names are to be called are the jurors to be empanelled for his trial and is further to inform him that if he desires to challenge any of them he must do so before they take the oath as jurors.
If the accused person desires to object to the whole panel of jurors he must do so before any juror takes the oath as a juror for his trial.
(1) The Crown or the accused person may object to a particular juror on the ground:
(a) that the juror is not qualified by law to act as a juror; or
(b) that the juror is not indifferent as between the Crown and the accused person.
(2) Such objections are in addition to any peremptory challenges that are allowed.
An objection to a juror, either by way of peremptory challenge or by way of challenge for cause, may be made at any time before the officer has begun to recite the words of the oath to the juror, but not afterwards.
(1) If at any time it becomes necessary to ascertain the truth of any matter alleged as cause for challenge the fact shall be tried by the jurors who have already taken the oath as jurors if more than one or, if one juror only has taken the oath as a juror, by such juror together with some indifferent person chosen by the court from the panel of jurors or, if no juror has taken the oath as a juror, by 2 indifferent persons chosen by the court from such panel.
(2) The persons so appointed are to take an oath to try the cause for challenge and their decision on the fact is final and conclusive.
(3) If the persons so appointed cannot agree the court may discharge them from giving a decision and may appoint 2 other persons to try the fact to be chosen as in the case where no juror has taken the oath as a juror.
(1) Each juror must take an oath to give a true verdict according to the evidence upon the issues to be tried by them.
(2) When all jurors have taken the oath the proper officer of the court is to inform them of the charge set forth in the indictment and of their duty as jurors upon the trial.
If, after a juror has taken the oath as a juror, it appears to the court from his own statement that he is not indifferent as between the Crown and the accused person, or that for any other reason he ought not to be allowed or required to act as a juror on the trial, the court may, without discharging the whole of the jury, discharge that particular juror and direct another juror to take the oath in his place.
(1) Every accused person is entitled to give evidence, to call evidence and to be represented by counsel, but he is not entitled to make a statement from the dock.
(2) In subsection (1) "counsel" includes any person entitled to audience as an advocate.
(1) The court may, if it thinks fit, permit an accused person to be absent during the whole or any part of the trial on such conditions as it thinks fit.
(2) If an accused person so conducts himself as to render the continuance of the proceedings in his presence impracticable the court may order him to be removed and may direct the trial to proceed in his absence.
(3) If an accused person injures himself in order to prevent the trial commencing or continuing the court may direct a plea of not guilty to be entered if no plea has been entered and that the trial shall proceed in his absence.
(4) If the accused person absents himself during the trial without leave the court may direct a warrant to be issued to arrest him and bring him before the court forthwith and may also direct the trial to proceed in his absence.
At the close of the evidence for the prosecution the proper officer of the court shall ask the accused person if he intends to adduce evidence in his defence.
(1) The following rules govern the order in which the parties address the jury:
(a) counsel for the Crown must make an opening address, outlining the case for the prosecution, before calling evidence for the prosecution;
(b) if the accused person proposes to call witnesses to give evidence for the defence, the accused person may, at the close of the case for the prosecution, make an opening address, outlining the case for the defence, before giving or calling evidence;
(c) at the conclusion of the evidence, counsel for the Crown may address the jury to sum up the case for the prosecution;
(d) at the conclusion of that address, the accused person may address the jury to sum up the case for the defence.
(2) If, in the opinion of the presiding Judge, the accused person (or counsel for the accused person) made assertions in the course of summing up the case for the defence that are unsupported by the evidence, the Judge may allow counsel for the Crown a further opportunity to address the jury to reply to those assertions.
(3) If there are 2 or more accused persons, the order in which they are to exercise the right to address the jury is to be:
(a) as mutually agreed between them; or
(b) in default of agreement – the reverse of the order in which their names appear on the indictment.
(4) If an accused person is represented by counsel, the right to address the jury is to be exercised on the accused person's behalf by counsel.
(5) The presiding Judge may, if of the opinion that there should be a departure from these rules in the circumstances of a particular case, allow a departure from these rules.
Example
If a particular witness would not otherwise be available to the defence, the presiding Judge might authorise the defence to interpose the witness before the close of the case for the prosecution.
(1) After the evidence is concluded and the counsel or the accused person or persons, as the case may be, have addressed the jury it is the duty of the court to instruct the jury as to the law applicable to the case with such observations upon the evidence as the court thinks fit to make.
(2) After the court has instructed the jury they are to consider their verdict.
(1) Except as hereinafter stated after the jury has been empanelled and the charge has been stated to the jury by the proper officer, the jurors must not separate until they have given their verdict or are discharged by the court and no person except the officer of the court who has charge of them is to be allowed to speak to or communicate with any of them without the leave of the court until they are discharged.
(2) The court may, if the court considers it appropriate to do so, permit the jury to separate for any specified period during an adjournment of the court.
(2A) The court may give any direction for the conduct of the jury in relation to the separation.
(3) If any person disobeys the directions of this section he may be punished summarily as for contempt of court.
(4) The validity of the proceedings is not affected by any such disobedience but, if the fact is discovered before the verdict is given, the court, if it is of opinion that such disobedience is likely to prejudice the fair trial of the charge, may discharge the jury and may direct that a fresh jury be empanelled during the same sittings of the court or may adjourn the trial.
(1) Until the jury have given their verdict they must be kept during any adjournment of the court in some private place under the charge of an officer of the court and are to be provided with such accommodation, meals and refreshment as the court may allow.
(2) Subsection (1) does not affect the operation of section 365(2) and (2A).
(1) The court may in any case, if it thinks fit, direct that the jury shall view any place or thing that the court thinks it is desirable that they should see and may give any necessary directions for that purpose.
(2) The validity of the proceedings is not affected by disobedience to any such directions, but if the fact is discovered before the verdict is given the court, if it is of opinion that such disobedience is likely to prejudice the fair trial of the charge, may discharge the jury and may direct that a fresh jury be empanelled during the same sittings of the court or may adjourn the trial.
Where upon a trial a period of not less than 6 hours has elapsed since the jury retired and the jurors are not unanimously agreed upon their verdict the court shall:
(a) if the jury consists of 11 or 12 jurors and 10 of those jurors are agreed upon a verdict to be given, take and enter that verdict as the verdict of the jury; or
(b) if the jury consists of 10 jurors and 9 of those jurors are agreed upon a verdict to be given, take and enter that verdict as the verdict of the jury.
In any case in which it appears to the court that the question whether an accused person ought or ought not to be found guilty of an offence may depend upon some specific fact or that the proper punishment to be imposed upon a finding of guilt may depend upon some specific fact the court may require the jury to find that fact specially.
Notwithstanding the provisions of section 369 the jury, on the trial of a person charged with the unlawful publication of defamatory matter, may give a general verdict of guilty or not guilty upon the whole matter in issue in like manner as in other cases.
(1) When the trial of an accused person is adjourned after the jury has been empanelled the court may discharge the jury.
(2) If the jury cannot agree as to the verdict to be given or reach a majority verdict as provided by section 368, or if any emergency arises of such a nature as to render it, in the opinion of the court, necessary or highly expedient for the ends of justice to do so, the court may, in its discretion, discharge the jury without giving a verdict and may direct that a fresh jury be empanelled during the same sittings of the court or may adjourn the trial.
(3) Such an exercise of discretion is not subject to review by any court.
Note
The jury may also be discharged under section 331A(7)(a)(i).
(1) This section applies if the presiding Judge becomes incapable of continuing with a trial.
(2) The Chief Justice or acting Chief Justice may, after hearing submissions from the parties, decide:
(a) to take over, or assign another Judge to take over, the conduct of the trial; or
(b) to terminate the trial.
(3) For the purpose of hearing submissions and making the decision, the Chief Justice or acting Chief Justice may make the orders the Chief Justice or acting Chief Justice considers appropriate.
(4) If a Judge (the new presiding Judge ) takes over the conduct of the trial:
(a) rulings of the former presiding judge about the conduct of the trial continue to have effect; and
(b) the rulings may be re-examined only if the new presiding judge is satisfied the re-examination is justified because of fresh evidence or material brought before the court.
(5) However, if the Chief Justice or acting Chief Justice decides to terminate the trial, the Chief Justice or acting Chief Justice must:
(a) discharge the jury; and
(b) remand the accused in custody, or release the accused on bail, to await a further trial.
(6) If, because of the circumstances of the incapacity of the presiding Judge it is impracticable for the Chief Justice or acting Chief Justice to make a decision under subsection (2) in a reasonable time:
(a) a proper officer of the court must discharge the jury; and
(b) if in custody, the accused must remain in custody to await a further trial but has the same rights relating to bail as applied on the original committal for trial.
(1) If at any time during the trial:
(a) a juror dies; or
(b) the court is of the opinion that:
(i) the juror is not indifferent as between the Crown and the accused person; or
(ii) by reason of any matter of urgency or importance a juror should be discharged from further attendance,
the court may, in its discretion:
(c) discharge the jury; or
(d) discharge the juror and direct that the trial shall proceed with the remaining jurors.
(2) In any such case the presence of the remaining jurors, not being fewer than 10, shall have the same effect as if all the jurors had continued present.
The taking of a verdict or any other proceedings of the court are not invalid by reason of their happening on a Sunday.
When the issues raised by any plea or pleas, except the plea of not guilty, have been found against an accused person who has not pleaded the plea of not guilty, he is to be called upon to plead afresh.
Division 5 Evidence: admissions of fact
On the trial of a person charged with an indictable offence of which the giving of false testimony by any person at the trial of a person charged with an offence is an element, a certificate setting out the substance and effect only, without the formal parts of the charge, and the proceedings at the trial and purporting to be signed by the officer having the custody of the records of the court where the charge was tried, or by his deputy, is sufficient evidence of the trial without proof of the signature or official character of the person who appears to have signed the certificate.
The averment in an indictment that the prosecution is instituted by the direction of a Crown Law Officer or at the request of the government of any state is sufficient evidence of the fact until the contrary is shown.
(1) An accused person may by himself or his counsel admit on the trial any fact alleged against him and such admission is sufficient proof of the fact without other evidence.
(2) The prosecution may admit on the trial any fact alleged by the accused person and such admission is sufficient proof of the fact without other evidence.
(3) In this section "trial" also includes proceedings before the Local Court to hear and determine the charge of an indictable offence summarily dealing summarily with a crime.
If a person found guilty at his trial refused to make an admission requested in writing by the Crown of such a nature that, in the opinion of the court, the making of it could not have prejudiced him in his defence, the court may take such refusal into account when passing sentence.
If the jury find that the accused person is not guilty, or give any other verdict that shows that he is not liable to punishment, he is entitled to be discharged from the charge of which he is so acquitted.
(1) If, on the trial of a person charged on indictment with a property offence, it is alleged or appears that he is not guilty by reason of intoxication, other than intoxication of such a nature that section 43C applies, the jury are required to find specially, if they find he is not guilty, whether he is not guilty by reason of intoxication and whether such intoxication was voluntary.
(2) If the jury find he is not guilty by reason of intoxication and his intoxication was voluntary the court may order him to pay by way of reparation an amount not exceeding the costs of bringing the charge including the costs of all reasonable investigations relating thereto and the costs of the committal proceedings and, in an appropriate case, may make an order for the payment of compensation and restitution pursuant to the Sentencing Act 1995 .
(3) The court may itself assess such costs or order that they be taxed by the proper officer of the Supreme Court.
(4) A person liable to make reparation may be ordered to make it in instalments or at some future time specified by the court.
(5) An amount ordered to be paid for reparation shall be deemed to be a debt owed to the Attorney-General as agent of the Crown and, upon default being made in its payment, the Attorney-General may bring and maintain civil proceedings for its recovery.
If, on the trial of a person charged on indictment with a property offence, the jury find that he committed the offence charged in the indictment or an offence available upon it with respect to some, but not all, of the property described in the indictment the jury shall return a verdict of guilty of the offence found by them to have been committed and, by way of special verdict, shall state with respect to what property the general verdict relates.
If, on the trial of a person charged on indictment for theft of property or, alternatively, receiving that property, the trier of fact finds that the person committed the offence of theft or receiving but cannot decide which of the offences the person committed, the trier of fact must enter a finding of guilt for the first offence charged in the indictment.
(1) A person found guilty of an offence, whether on his plea of guilty or otherwise, may at any time before sentence move that judgment be arrested on the ground that the indictment does not disclose any offence.
(2) Upon the hearing of the motion the court may allow any such amendments of the indictment as it might have allowed before verdict.
(3) The court may either hear and determine the motion forthwith or may reserve the question of law for the consideration of the Court of Criminal Appeal as hereinafter provided.
Division 7 Hearing summarily-triable offence with indictable
offence
In this Division:
"summarily-triable offence" means:
(a) a summary offence; or
(b) an indictable offence a charge of which may be heard and determined summarily by the Local Court; or
(c) an offence mentioned in section 22(1) of the Misuse of Drugs Act 1990 if:
(i) the prosecution has elected under section 23(2) of that Act for the charge of the offence to be heard and determined summarily; and
(ii) the Local Court has not discontinued those summary proceedings under section 23(4) of that Act.
(1) When hearing and determining a charge against a person on indictment, the Supreme Court may also, if it considers appropriate, hear and determine summarily any charge of a summarily-triable offence that has been laid against the person.
(2) However, the Supreme Court must not hear and determine the charge of the summarily-triable offence unless the charge has been transmitted to a Registrar of the Supreme Court under section 390.
(3) Subject to this section, the practice and procedure of the Supreme Court and the provisions of this Code relating to taking a plea on an indictment apply in relation to the taking of a plea to the charge of the summarily-triable offence.
(4) On finding the accused person guilty of the summarily-triable offence, the Supreme Court may make any orders in relation to the finding that the Local Court could have made, but may not impose a penalty in excess of the penalty that the court of summary jurisdiction could have imposed.
(5) Within 30 days after the final determination of the charge of the summarily-triable offence, a Registrar of the Supreme Court must notify the result of the determination to a registrar of the Local Court and no further appearance is required in that court by any party to the proceeding.
(1) This section applies if:
(a) an indictment has been presented against a person; and
(b) the person has been charged with a summarily-triable offence, whether the charge was laid before or after the indictment was presented.
(2) If the person wishes to have the charge of the summarily-triable offence heard and determined by the Supreme Court under section 389, the person may apply to a registrar of the Local Court to transmit the charge to a Registrar of the Supreme Court.
(3) The application must be:
(a) made as a written statutory declaration; and
(b) contain the following:
(i) details of the charge to be transmitted;
(ii) a statement that the applicant wishes to have the charge transmitted to the Supreme Court;
(iii) a statement of the applicant's intention to plead guilty to the charge.
(4) The registrar of the Local Court must transmit the charge to a Registrar of the Supreme Court if satisfied:
(a) the application meets the requirements of this section; and
(b) the Local Court has not started hearing sentencing submissions in relation to the charge.
(1) This section applies if a charge of a summarily-triable offence laid against a person has been transmitted to a Registrar of the Supreme Court under section 390.
(2) The Supreme Court must direct that the charge be heard and determined by the Local Court and remit the charge to a registrar of the Local Court if:
(a) the person pleads not guilty to the charge before the Court; or
(b) the Court decides for any other reason not to hear and determine the charge.
Part X Punishment: appeal: miscellaneous matters
(1) In this Division, unless the contrary intention appears:
"appellant" means a person who has been found guilty and desires to appeal or to seek leave to appeal under this Division.
"Court" means the Court of Criminal Appeal.
"court of trial" means the court from whose finding, sentence or other determination a person is entitled to appeal or to apply for leave to appeal.
"Registrar" means the Registrar of the Court.
"sentence" includes any order made by the court of trial on a finding of guilt with reference to the person found guilty or his property.
(2) For the purposes of this Division, if, under Part IIA, a person is found not guilty of committing an offence because of his or her mental impairment and the defence of mental impairment was not raised by him or her, the finding is taken to be a finding of guilt at a trial and is subject to the same rights of appeal, and to appeal in the same manner, as if it were such a finding of guilt.
(3) For the purposes of this Division, if a declaration is made under Part IIA that an accused person is liable to supervision or an order is made under that Part that an accused person be released unconditionally, the declaration or order is taken to be a sentence and is subject to the same rights of appeal, and to appeal in the same manner, as if it were a sentence.
(5) For the purposes of this Division a person against whom an order has been made pursuant to section 383 shall be deemed to be a person found guilty on indictment, the special verdict shall be deemed to be the finding of guilt and the order shall be deemed to be the sentence.
(7) If the charge of the offence of which a person is found guilty was heard and determined summarily, for the purposes of an appeal the person is taken to have been found guilty of a summary offence.
(1) The Supreme Court shall be the Court of Criminal Appeal and the Court shall be duly constituted if it consists of not less than 3 Judges and of an uneven number of Judges.
(2) The determination of any question before the Court shall be according to the opinion of the majority of the members of the Court hearing the case.
(3) The Judge of the court of trial shall not be one of such Judges.
(4) The Registrar of the Supreme Court shall be the Registrar of the Court.
(1) When any person is indicted for any offence the court of trial must, on the application of counsel for the accused person made before verdict and may, in its discretion, either before or after judgment, without such application, reserve any question of law that arises on the trial for the consideration of the Court.
(2) If the accused person is found guilty and a question of law has been so reserved before judgment, the court of trial may either pronounce judgment on the finding of guilt and respite execution of the judgment or postpone the judgment until the question has been considered and decided and may either commit the person found guilty into the custody of the Commissioner of Correctional Services or admit him to bail on recognizance, with or without sureties, and in such sum as the court of trial thinks fit, conditioned to appear at such time and place as the court of trial may direct to receive judgment.
(3) The Judge of the court of trial is thereupon required to state, in a case signed by him, the question of law so reserved with the special circumstances upon which it arose and the case is to be transmitted to the Court.
(4) The Judge of the court of trial may state, in a case signed by him, the question of law so reserved before the trial has concluded.
(5) Any question so reserved is to be heard and determined as an appeal by the Court and, in the discretion of the Court, may be heard and determined before the trial has concluded.
(6) The Court may send the case back to be amended or restated if it thinks it necessary so to do.
(1) When the court of trial before which a person is found guilty on indictment arrests judgment that court is required, on the application of counsel for the prosecution, to reserve a case for the consideration of the Court as hereinbefore provided.
(2) On the hearing of the case the Court may affirm or reverse the order arresting judgment.
(3) If the order is reversed the Court is to direct that judgment be pronounced upon the offender and he is to be ordered to appear at such time and place as the Court may direct to receive judgment and any justice of the peace may issue his warrant for the arrest of the offender.
(4) An offender so arrested may be admitted to bail by order of the Court or a Judge thereof, which may be made at the time when the order directing judgment to be pronounced is made or afterwards.
A person found guilty on indictment, or a person found guilty of a summary offence under section 389, may appeal to the Court:
(a) against the finding of guilt or any special finding on any ground that involves a question of law alone;
(b) with the leave of the Court, or upon the certificate of the Judge of the court of trial that it is a fit case for appeal, against the finding of guilt or any special finding on any ground of appeal that involves a question of fact alone or question of mixed law and fact, or any other ground that appears to the Court to be a sufficient ground of appeal; and
(c) with the leave of the Court against the sentence passed on the finding of guilt.
(1) The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.
(2) The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3) Subject to the special provisions of this Division the Court shall, if it allows an appeal against a finding of guilt, quash the finding of guilt and direct a judgment and verdict of acquittal to be entered.
(4) On an appeal against a sentence, the Court must:
(a) if it is of the opinion that another sentence, whether more or less severe, is warranted and should have been passed – quash the sentence and either:
(i) impose another sentence; or
(ii) remit the matter to the court of trial; or
(b) in any other case – dismiss the appeal.
(1) Where an appellant has been found guilty of an indictable offence and on the indictment the jury could have found him guilty of some other, but less serious, offence and it appears to the Court that, although he was not and could not be properly found guilty of the offence of which he was actually found guilty, the evidence given at his trial was such that a reasonable jury correctly instructed must find him guilty of the other offence, the Court may, instead of allowing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted.
(2) Where, on the finding of guilt of the appellant, the jury have found a special verdict and the Court considers that a wrong conclusion has been arrived at by the court of trial on the effect of that verdict, the Court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict and pass such sentence, whether more or less severe, in substitution for the sentence passed at the trial as may be warranted in law.
(1) This section applies if, on an appeal against a finding of guilt or the sentence passed on such a finding, it appears to the Court that the person found guilty should have been found not guilty because of mental impairment under section 43C.
(2) The Court must quash the finding of guilt and:
(a) declare that the person is liable to supervision under Part IIA, Division 5; or
(b) order that the person be released unconditionally.
(3) If the Court makes a declaration under subsection (2)(a), the Court must remit the matter to the Supreme Court for the making of a supervision order under Part IIA, Division 5 in respect of the person.
On an appeal against a finding of guilt on indictment the Court may, either of its own motion or on the application of the appellant, order a new trial in such manner as it thinks fit if the Court considers that a miscarriage of justice has occurred and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order that the Court is empowered to make.
(1A) In exercising its discretion on an appeal made under subsection (1)(c) involving a sentence imposed after the commencement of this subsection, the Court must not take into account any element of double jeopardy involving the respondent being sentenced again when deciding whether to do either or both of the following:
(a) allow the appeal;
(b) impose another sentence.
(1) A Crown Law Officer may appeal to the Court:
(a) where proceedings on indictment have been stayed pursuant to section 21;
(b) against any determination made pursuant to section 347;
(c) against any sentence with respect to an indictable offence;
(d) where proceedings have been had as to whether a person ought to be declared an habitual criminal or a person incapable of exercising proper control over his sexual instincts or recommitted as such after his discharge as such and such declaration or recommittal was not made; or
(e) where an indictment has been quashed or proceedings on indictment have been stayed under:
(i) section 339; or
(ii) the inherent jurisdiction of the court of trial,
and the Court may, in its discretion, direct that the proceedings continue or vary the sentence and impose such sentence or make such a declaration or recommittal order, or make an order quashing the order of the court of trial quashing the indictment, and may make any consequent orders including an order for the arrest of the respondent to the appeal as the Court thinks proper.
(2) A Crown Law Officer may, in a case where a person has been acquitted after his trial on indictment, refer any point of law that has arisen at the trial to the Court for its consideration and opinion thereon.
(3) Notice of the reference shall be given to the acquitted person.
(4) Upon the reference the Court shall hear argument:
(a) by the Crown Law Officer or by counsel on his behalf; and
(b) if he so desires, by the acquitted person or by counsel on his behalf; or
(c) by any counsel appointed by the Crown Law Officer to present such argument as might have been presented by the acquitted person if he had appeared,
and thereupon shall consider the point referred and furnish to the Crown Law Officer its opinion thereon.
(5) The opinion of the Court upon the reference shall not affect the trial in respect of which the reference is made or an acquittal in that trial.
(1) The operation of any order for the restitution of any property or for the payment of compensation to an aggrieved person made by the court of trial and the operation of the provisions of any civil law relating to the revesting of the property in stolen goods on a finding of guilt shall (unless such court directs to the contrary in any case in which, in its opinion, the title to the property is not in dispute) be suspended:
(a) until the expiration of the time provided for appealing to the Court; and
(b) where notice of appeal or of application for leave to appeal is given within the time provided, until the determination of the appeal or refusal of the application,
and in cases where the operation of any such order or the operation of the said provisions is suspended until the determination of the appeal, the order or provisions shall not take effect as to the property in question if the finding of guilt is quashed on appeal, except by the special order of the Court.
(2) The Court may annul or vary any such order although the finding of guilt is not quashed.
Where notice of appeal or application for leave to appeal is given the Court may suspend any order made with respect to the driver's licence of the appellant until the determination of the appeal or application.
(1) Any person found guilty desiring to appeal to the Court, or to obtain the leave of the Court to appeal from any finding of guilt or sentence, shall give notice of appeal or notice of application for leave to appeal in the prescribed manner within 28 days after the date of such finding of guilt or sentence.
(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Court.
The Judge of the court of trial may, in the case of an appeal or application for leave to appeal, furnish to the Registrar a report giving his opinion upon the case or upon any point arising in the case.
(1) The Court may, if it thinks it necessary or expedient in the interests of justice:
(a) order the production of any document, exhibit or other thing connected with the proceedings;
(b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order any such persons to be examined before any person appointed by the Court for the purpose and admit any depositions so taken as evidence;
(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not a compellable, witness;
(d) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, that cannot, in the opinion of the Court, be conveniently conducted before the Court, refer the question for inquiry and report to a commissioner appointed by the Court and act upon the report of such commissioner so far as the Court thinks fit; and
(e) appoint any person with special expert knowledge to act as assessor to the Court in any case in which it appears to the Court that such special knowledge is required for the determination of the case,
and exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the Supreme Court on appeals or applications in civil matters and issue any warrant or other process necessary for enforcing the orders or sentences of the Court.
(2) In no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial.
(1) Neither an appellant seeking leave to appeal or to extend the time in which notice of appeal or notice of application for leave to appeal may be given, nor a respondent to the application for the leave or extension, is entitled to be present, except with the leave of the Court, at the hearing of the application or at any proceedings preliminary or incidental to the application.
(2) An appellant who is in custody shall not be entitled to be present at the hearing of his appeal, application for leave to appeal or any proceedings preliminary or incidental thereto except by leave of the Court.
Unless he is represented by counsel a respondent who is in custody is entitled to be present at the hearing of an appeal brought by a Crown Law Officer.
The power of the Court to pass any sentence may be exercised notwithstanding the person to be affected thereby is not present.
(1) Any party may present his argument with respect to an appeal, application for leave to appeal or any proceedings preliminary or incidental thereto in writing.
(2) Both an appellant seeking leave to appeal or to extend the time in which notice of appeal or notice of application for leave to appeal may be given and a respondent to the application for the leave or extension are to present their arguments, including an argument in relation to proceedings preliminary or incidental to the application, in writing, unless the Court directs otherwise.
On the hearing or determination of an appeal, application for leave to appeal, any proceedings preliminary or incidental thereto or on a Crown Law Officer's reference no costs shall be allowed on either side.
(1) An appellant who is not admitted to bail shall, pending the determination of his appeal, be treated in such manner as may be directed by regulations made under the Correctional Services Act 2014 .
(2) The time during which an appellant, pending the determination of his appeal, is liberated on bail and, subject to any directions that the Court may give to the contrary on any appeal, the time during which an appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence.
(3) Any imprisonment under such sentence, whether it is the sentence passed by the court of trial or the sentence passed by the Court, shall, subject to any directions that the Court may give as aforesaid, be deemed to be resumed or to begin to run, if the appellant is in custody, as from the day on which the appeal is determined and if he is not in custody as from the day on which he is received into a custodial correctional facility under the sentence.
(4) Provision shall be made by regulations under the Correctional Services Act 2014 for the manner in which an appellant, when in custody, is to be brought to any place where he is entitled to be present, or ordered to be taken, for the purposes of this Division and for the manner in which he is to be kept in custody whilst absent from a custodial correctional facility for the purpose; and an appellant whilst in custody in accordance with those regulations shall be deemed to be in legal custody.
(1) The Registrar shall take all necessary steps for obtaining a hearing of any appeals or applications, notice of which is given to him and shall obtain and lay before the Court in proper form all documents, exhibits and other things relating to the proceedings in the court of trial that appear necessary for the proper determination of the appeal or application.
(2) If it appears to the Registrar that any notice of appeal or of application for leave to appeal against a finding of guilt or sentence does not show any substantial ground of appeal, he may refer the appeal or application to the Court for summary determination; and the Court may thereupon, if it considers that the appeal or application is frivolous or vexatious, dismiss the appeal or refuse the application summarily without calling upon any person to attend the hearing.
(3) The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of application to any person who demands the same and to officers of courts, the Commissioner of Correctional Services and to such other officers or persons as he thinks fit and the Commissioner of Correctional Services shall cause such forms and instructions to be placed at the disposal of prisoners desiring to appeal or to make any application and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the Registrar.
(4) Where an appellant is in custody, the Registrar shall give reasonable notice to him in writing:
(a) that if he wishes to appear in person at the Court he must seek the leave of the Court;
(b) that he may make such application for leave to appear in writing and may present his argument in support of such application in writing;
(c) that he may present his argument with respect to his appeal, application for leave to appeal or any proceedings preliminary or incidental thereto in writing;
(d) of the date of the sittings of the Court during which it is expected his appeal or application for leave to appeal will be heard; and
(e) of the result of any proceedings preliminary or incidental to his appeal or application for leave to appeal given when he was not present.
(5) Where a respondent to a Crown Law Officer's appeal is in custody, the Registrar shall give reasonable notice to him in writing:
(a) that he may himself appear on the hearing of the appeal if he is not represented by counsel;
(b) that he may present his argument with respect to the appeal or any proceedings preliminary or incidental thereto in writing;
(c) of the date of the sittings of the Court during which it is expected the appeal will be heard; and
(d) of the result of any proceedings preliminary or incidental to the appeal given when he was not present.
Any documents, exhibits or other things connected with any proceedings before a court of trial, in respect of which any person is entitled or may be authorized to appeal, shall be kept in the custody of the court of trial for such time as may be prescribed, subject to such power as may be prescribed for the conditional release of any such documents, exhibits or other things from that custody.
(1) A record shall be made of the proceedings of any trial of any person on indictment.
(2) On any notice of appeal or application for leave to appeal the record shall be furnished to the Registrar for the use of the Court or any Judge.
(3) A copy of the record must be furnished to any party interested upon the payment of the charges prescribed by regulation.
(1) The powers of the Court to give leave to appeal, to extend the time in which notice of appeal or of an application for leave to appeal may be given, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave, to admit an appellant to bail and to suspend any order made with respect to the driver's licence of the appellant may be exercised by any Judge in the same manner as they may be exercised by the Court and subject to the same provisions.
(2) If the Judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Court.
(1) Where an appeal to the Court is upheld and the appellant is entitled to have the finding of guilt against him quashed by order of the Court the Court may, upon application on behalf of the Crown at any time before the release of such appellant, either by the same or by a separate order, direct that execution of the order quashing the appellant's finding of guilt be stayed for such time, not exceeding 7 days, as the Court thinks fit; and the Court or a Judge shall thereupon make such order for the detention of the appellant, or his return to any former custody, or for releasing him on bail, as the Court or Judge thinks fit, for the time during which such stay has been directed.
(2) The Court or a Judge may, upon application by or on behalf of a Crown Law Officer, make such order for the detention of the appellant or for releasing him on bail pending the hearing of an appeal to the High Court of Australia as the Court or a Judge may think fit and may at any time vary or rescind such order.
(3) On the application of any appellant deeming himself wronged by any failure to diligently prosecute such appeal the Court or a Judge may order the immediate execution of the original order of the Court quashing the finding of guilt and may order the appellant's immediate release and the Court may further, if it thinks fit, award him such compensation as appears just.
Nothing in the foregoing provisions of this Division shall affect the prerogative of mercy, and a Crown Law Officer, on the consideration of any petition for the exercise of the prerogative of mercy having reference to the finding of guilt of any person or to any sentence passed on a person found guilty of an offence, may:
(a) refer the whole case to the Court whereupon the case shall be heard and determined by the Court as in the case of an appeal by a person found guilty of an offence; or
(b) if he desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon whereupon the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon.
(1) In any case where the prerogative of mercy is extended to an offender, it may be extended upon condition of the offender entering into a recognizance conditioned as in the case of offenders conditionally released by a court of trial.
(2) The offender is thereupon liable to the same obligations and is liable to be dealt with in all respects in the same manner as a person conditionally released by a court of trial.
A pardon has the effect of discharging the person found guilty of an offence from the consequences of the finding of guilt.
(1) Where before or after the commencement of this section a person has been found guilty of an indictable offence and the prerogative of mercy has been extended to the person in respect of that finding of guilt, the Attorney-General may, at the request of the person found guilty of the offence, if the Attorney-General is satisfied that it is expedient in the interests of justice so to do, refer the case to the Court to enable the Court to consider or again consider whether the finding of guilt should be quashed and a judgment and verdict of acquittal entered.
(2) Notice of a reference under subsection (1) shall be given to the person found guilty of the offence.
(3) In considering a case referred to it under subsection (1) the Court shall hear argument by the Attorney-General or by counsel on the Attorney-General's behalf and, if the Court considers it necessary to enable it to reach a conclusion on the question before it, may hear argument:
(a) by the person found guilty of the offence or by counsel on that person's behalf; or
(b) by any counsel appointed by the Attorney-General to present such argument as might have been presented by the person found guilty of an offence if the person found guilty of an offence had appeared.
(4) In considering a case referred to it under subsection (1), but subject to subsection (5), the Court has such of the powers it has in relation to a matter brought before it on an appeal under section 410 as are necessary to enable it to determine the question referred to it.
(5) In considering a case referred to it under subsection (1) the Court is not bound by the rules of evidence but may inform itself in such manner as it thinks fit.
(6) Without limiting the generality of subsection (5), the Court may:
(a) receive in evidence:
(i) a transcript of evidence taken, and the exhibits produced, in proceedings before a court of, or in an inquiry by a commission of inquiry (by whatever name called) established by or appointed under a law of, the Commonwealth or a State or Territory of the Commonwealth; or
(ii) a report of a commission of inquiry referred to in subparagraph (i),
and draw such conclusions of fact from the evidence and exhibits or report as it thinks fit; or
(b) adopt, as it thinks fit, the finding, decision, judgment, or reasons for the finding, decision or judgment, of a court or commission of inquiry referred to in paragraph (a) that are relevant to the Court's consideration.
(7) The decision of the Court on a case referred to it under subsection (1) has the same force and effect as its decision on an appeal under section 410.
Division 3 Miscellaneous provisions
(1) If it appears to a court dealing with a matter on indictment that any person has been guilty of perjury in any testimony given before it, the court may commit him to take his trial for such perjury in the same manner as if he had been charged before the Local Court with the same perjury and sufficient evidence had been given against him.
(2) A person so committed may be admitted to bail in the same manner as if he had been committed for trial by justices of the peace.
(3) The court may require any person to enter into a recognizance conditioned to appear and give evidence at the trial of a person so directed to be prosecuted.
A person who has been found guilty of an offence, whether before or after the commencement of this section, shall not, by reason of the finding of guilt, suffer a legal disability except as prescribed by an Act of the Territory or of the Commonwealth.
Except when expressly so provided the prosecution or finding of guilt of a person for an offence does not affect any civil remedy that any person aggrieved by the offence may have against the offender.
No court fees can be taken in a court of criminal jurisdiction from any person who is charged with an offence for any proceedings had or taken in that court with respect to the charge.
(1) Subject to subsection (2) any person who is committed for trial is entitled to have on demand from the person who has the lawful custody thereof copies of the depositions of the witnesses on whose depositions he has been so committed.
(2) If the demand is not made before the day appointed for the commencement of the sittings of the court to which the person on whose behalf the demand is made has been committed for trial, he is not entitled to have any such copy unless the Judge is of opinion that the copy may be made and delivered without delay or inconvenience.
(3) The court may postpone the trial on account of the person committed for trial not having previously had a copy of the depositions.
Any person who is tried for an indictable offence is entitled at the time of his trial to inspect without fee all depositions or copies of depositions that have been taken against him and returned into the court before which the trial is had.
(1) Any matter that has to be proved by the defence in a trial must be proved on the balance of probabilities; otherwise the standard of proof is proof beyond reasonable doubt.
(2) Subsection (1) does not apply in relation to the proof of facts necessary for determining whether evidence should be admitted or excluded.
(1) A person shall not be arrested without warrant except in accordance with this Code or an Act expressly giving power to arrest without warrant.
(2) A person, not being a member of the Police Force, may without warrant arrest a person ( the offender ) where the person:
(a) finds the offender committing an offence or doing an act or behaving or conducting himself, or in such circumstances, that the person believes on reasonable grounds that the offender has committed an offence and that the arrest of the offender is necessary:
(i) to ensure the appearance of the offender before a court of competent jurisdiction; or
(ii) to preserve public order; or
(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or
(iv) for the safety or welfare of members of the public or of the offender; or
(b) is instructed to do so by a member of the Police Force having power under an Act to apprehend the offender; or
(c) believes on reasonable grounds that the offender is escaping from legal custody or aiding or abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend the offender in the circumstances of the case.
(2A) A reference in subsection (2) to a member of the Police Force does not include a person who has not taken an oath under section 26 of the Police Administration Act 1978 .
(3) A person who is arrested under subsection (2) and in custody shall not be questioned in relation to an offence other than by a member of the Police Force in accordance with the Police Administration Act 1978 .
(4) As soon as practicable after a person is arrested under subsection (2), the person shall be delivered to a member of the Police Force, and the Police Administration Act 1978 shall apply to and in relation to the person and the member as if the arrest had been made under that Act.
(5) A person who is arrested under subsection (2)(a) shall be held in custody only while the reason for the person's arrest, as referred to in that paragraph, continues.
(6) A person who is arrested under subsection (2)(a) shall be released immediately from custody where it becomes apparent that the person did not commit the offence for which the person was arrested.
(7) For the purposes of subsection (2)(a), "offence" does not include a contravention of or failure to comply with an instrument of a legislative or administrative character.
Where an arrest is made under section 441 under a belief that is held on reasonable grounds, the arrest shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person arrested did not commit the offence alleged.
(1) A person in command of an aircraft may, on board the aircraft, with such assistance as is necessary, arrest without warrant a person whom the person in command finds committing, or reasonably suspects of having committed, or of having attempted to commit, an offence on or in relation to or affecting the use of the aircraft, and the person in command or a person authorised by that person may hold the person so arrested in custody until that person can be brought before a justice of the peace or a court or other proper authority to be dealt with in accordance with law.
(2) A person in command of an aircraft may, where the person considers it necessary to do so in order to prevent an offence on or in relation to or affecting the use of the aircraft, or to avoid danger to the safety of the aircraft or of persons on board the aircraft, with such assistance as the person thinks necessary:
(a) place a person who is on board the aircraft under restraint or in custody; and/or
(b) if the aircraft is not in the course of a flight, remove a person from the aircraft.
Division 1 Criminal Code Amendment (Criminal Responsibility
Reform) Act 2005
This Code, as in force immediately before the commencement of this section, continues to apply in relation to offences committed before that commencement.
Division 2 Criminal Code Amendment (Expert Evidence) Act 2009
The amendments made to this Act by the Criminal Code Amendment (Expert Evidence) Act 2009 apply only to a trial that starts at least 14 days after the commencement of that Act.
Division 3 Criminal Code Amendment (Mental Impairment and
Unfitness for Trial) Act 2010
(1) Section 43ZD(3A) to (3D) as inserted by the amending Act applies in relation to an application to vary or revoke a supervision order made, but not decided, before the commencement.
(2) Section 43ZE(3A) to (3D) as inserted by the amending Act applies in relation to an application to vary a non-custodial supervision order made, but not decided, before the commencement.
(3) Section 43ZG(5A) to (5C) as inserted by the amending Act applies in relation to a review of a supervision order started, but not completed, before the commencement.
(4) Section 43ZO as inserted by the amending Act applies to any proceedings under Part IIA started, but not completed, before the commencement.
(5) In this section:
"amending Act" means the Criminal Code Amendment (Mental Impairment and Unfitness for Trial) Act 2010 .
"commencement" means the commencement of the amending Act.
Division 4 Criminal Code Amendment (Female Genital Mutilation)
Act 2013
(1) Section 186C, as amended by the Criminal Code Amendment (Female Genital Mutilation) Act 2013 , applies only in relation to offences committed after the commencement of this section ( commencement ).
(2) Section 186C, as in force before commencement, continues to apply in relation to offences committed before commencement.
(3) For this section:
(a) an offence is taken to have been committed after commencement only if all of the conduct constituting the offence occurred after commencement; and
(b) any other offence is taken to have been committed before commencement.
Division 5 Criminal Code Amendment (Psychiatric or Medical
Evidence) Act 2014
Section 331B applies only in relation to an offence for which an accused is committed for trial after the commencement of the Criminal Code Amendment (Psychiatric or Medical Evidence) Act 2014 .
Division 6 Criminal Code Amendment (Hit and Run) Act 2014
(1) Section 174FA as amended by the Criminal Code Amendment (Hit and Run) Act 2014 applies only in relation to offences committed after the commencement of this section ( commencement ).
(2) Section 174FA, as in force before commencement, continues to apply in relation to offences committed before commencement.
(3) For this section:
(a) an offence is taken to have been committed after commencement only if all the conduct constituting the offence occurred after commencement; and
(b) any other offence is taken to have been committed before commencement.
Division 7 Criminal Code Amendment (Child Abuse Material) Act
2014
(1) Section 125B, as amended by the Criminal Code Amendment (Child Abuse Material) Act 2014 , applies only in relation to offences committed after the commencement of this section ( commencement ).
(2) Section 125B, as in force before commencement, continues to apply in relation to offences committed before commencement.
(3) For this section:
(a) an offence is taken to have been committed after commencement only if all the conduct constituting the offence occurred after commencement; and
(b) any other offence is taken to have been committed before commencement.
Division 8 Justice and Other Legislation Amendment Act 2014
To avoid doubt, the Supreme Court may exercise powers under section 389 in relation to an indictment that was presented, or a summary offence the charge for which was laid, before the commencement of section 4 of the Justice and Other Legislation Amendment Act 2014 .
Division 9 Criminal Code Amendment (Presumption of Joint Trials)
Act 2014
Section 341A, as inserted by the Criminal Code Amendment (Presumption of Joint Trials) Act 2014 , applies in relation to an indictment presented or filed in court after the commencement of that Act, even if an offence charged in the indictment is alleged to have been committed before the commencement of that Act.
Division 10 Criminal Code Amendment (Remission for Resentencing)
Act 2015
(1) Section 411(4), as amended by the Criminal Code Amendment (Remission for Resentencing) Act 2015 , applies in relation to an appeal against a sentence that is heard after the commencement of that Act (the commencement ).
(2) Subsection (1) applies:
(a) even if the appellant was found guilty before the commencement; and
(b) regardless of when the appellant filed an originating process as defined in rule 82.01 of the Supreme Court Rules 1987 in relation to the appeal.
Division 11 Statute Law Amendment (Directors' Liability) Act
2015
(1) Section 125D, as inserted by the Statute Law Amendment (Directors' Liability) Act 2015 , (the new section ) applies in relation to a relevant offence committed by a body corporate after the commencement of Part 2, Division 5 of that Act (the commencement ) only if:
(a) all the conduct constituting the relevant offence occurred after the commencement; and
(b) all the conduct of the executive officer constituting the offence against the new section occurred after the commencement.
(2) Section 125D, as in force before the commencement:
(a) continues to apply in relation to offences committed by a body corporate before the commencement; and
(b) applies in relation to relevant offences committed by a body corporate after the commencement to which, as a result of subsection (1), the new section does not apply.
Division 12 Independent Commissioner Against Corruption
(Consequential and Related Amendments) Act 2018
In this Division:
"amending Act "means the Independent Commissioner Against Corruption (Consequential and Related Amendments) Act 2018 .
"commencement" means the commencement of Part 3 of the amending Act.
(1) Sections 76 to 78, 80 and 81, as inserted by the amending Act, apply only in relation to offences committed after the commencement.
(2) For this section, if any of the conduct constituting an offence occurred before the commencement, the offence is taken to have been committed before the commencement.
(1) If, before the commencement, there was a failure to disclose a private interest in a company, section 79 as in force immediately before the commencement applies in relation to that failure.
(2) If, before the commencement, there was a failure to disclose a private interest in property, manufacture, trade or business, section 80 as in force immediately before the commencement applies in relation to that failure.
(3) Section 79 as in force after the commencement applies to a failure to disclose a private interest after the commencement irrespective of whether that failure began before or after the commencement.
(4) Section 79, as inserted by the amending Act, applies in relation to offences committed after the commencement.
Division 13 Criminal Code Amendment Act 2019
In this Division:
"amending Act" means the Criminal Code Amendment Act 2019.
"commencement" means the commencement of the amending Act .
(1) Section 189A, as amended by the amending Act, applies only in relation to offences committed after the commencement.
(2) Section 189A, as in force before the commencement, continues to apply in relation to offences committed before the commencement.
(3) For this section:
(a) an offence is taken to have been committed after the commencement only if all of the conduct constituting the offence occurred after the commencement; and
(b) any other offence is taken to have been committed before the commencement.
(1) Section 316, as amended by the amending Act, applies only in relation to offences committed after the commencement.
(2) Section 316, as in force before the commencement, continues to apply in relation to offences committed before the commencement.
(3) For this section:
(a) an offence is taken to have been committed after the commencement only if all of the conduct constituting the offence occurred after the commencement; and
(b) any other offence is taken to have been committed before the commencement.
Division 14 Criminal Code Further Amendment Act 2019
(1) Any offence against a law of the Territory in force before the commencement of section 3(1) of this Act that was punishable by a term of imprisonment exceeding 6 months at the time the offence was committed is taken to be an indictable offence for the purposes of this Code and any other law of the Territory.
Note for subsection (1)
Section 3(1) of this Act repealed the Criminal Law Consolidation Act 1876 (SA) in its application to the Territory, on 1 January 1984.
(2) Any proceeding in a court in relation to an offence referred to in subsection (1) that was commenced before the commencement of this section is taken to have always been within the jurisdiction of that court.
(3) Any exercise of jurisdiction or purported exercise of jurisdiction by a court in relation to a proceeding described in subsection (2) is not invalid on the basis that any matter related to the offence was not within the jurisdiction of the court at any time during the proceeding.
(4) In this section:
"exercise of jurisdiction" includes any of the following:
(a) instituting, adjourning and continuing a proceeding;
(b) issuing a warrant, summons or other process;
(c) making or giving an order, direction, notice, whether by instrument or otherwise;
(d) making a finding of guilt;
(e) imposing a sentence;
(f) doing any other act or thing under an Act.
Division 15 Criminal Code Amendment Act 2021
Section 43BGA applies only in relation to offences committed after the commencement of section 7 of the Criminal Code Amendment Act 2021 .
Division 16 Criminal Justice Legislation Amendment Act 2022
(1) Section 189A, as amended by the Criminal Justice Legislation Amendment Act 2022 , applies only in relation to offences committed after the commencement of section 4 of that Act (the commencement ).
(2) Section 189A, as in force before the commencement, continues to apply in relation to offences committed before the commencement.
(3) For this section:
(a) an offence is taken to have been committed after the commencement only if all of the conduct constituting the offence occurred after the commencement; and
(b) any other offence is taken to have been committed before the commencement.
Division 17 Criminal Code Amendment (Property Offences) Act 2022
(1) The repealed provisions, as in force immediately before the commencement, continue to apply in relation to offences committed before the commencement.
(2) For subsection (1), if any of the conduct constituting an offence occurred before the commencement, the offence is taken to have been committed before the commencement.
(3) In this section:
"commencement" means the commencement of section 10 of the Criminal Code Amendment (Property Offences) Act 2022 .
"repealed provisions" means Part VII, Divisions 1, 1A, 2, 3, 3A, 4, 5, 7, 8 and 9 of this Act as in force immediately before their repeal by the Criminal Code Amendment (Property Offences) Act 2022 .
Division 18 Criminal Code Amendment (Age of Criminal
Responsibility) Act 2022
"charge" includes the following:
(a) a charge on an arrest;
(b) a complaint under an Act;
(c) a charge by a court;
(d) an indictment.
"commencement" means the commencement of section 3 of the Criminal Code Amendment (Age of Criminal Responsibility) Act 2022 .
"conviction" means, in respect of an offence, a finding of guilt, or the acceptance of a plea of guilty, by a court, judge, magistrate or person who exercised the jurisdiction of a court, whether or not a conviction is recorded.
"criminal process", in relation to a person for an offence committed or alleged to have been committed by the person, includes the following:
(a) an investigation of the person;
(b) the issue of a warrant for the arrest of the person or for a search in relation to the person;
(c) the arrest of the person;
(d) a charge against the person;
(e) a trial of the person;
(f) an appeal in relation to the trial or conviction of the person.
"record" means recorded information in any form (including data in a computer system) that is required to be kept by the following persons or bodies as evidence of the activities or operations of the person or body, or its predecessor, and includes part of a record and a copy of a record:
(a) the Police Force;
(b) the Director of Public Prosecutions;
(c) a court;
(d) the archives service established to perform the archives functions for the Territory under the Information Act 2002 .
(1) Sections 38 and 43AP, as in force immediately after the commencement, apply in relation to offences committed after the commencement.
(2) Sections 38(1) and 43AP, as in force immediately before the commencement, apply in relation to offences committed before the commencement.
(1) This section applies in relation to any offence committed or alleged to have been committed by a child under 12 years of age, including offences committed before the commencement.
(2) No criminal process may be started in relation to the offence.
(3) Any criminal process in relation to the offence is discontinued.
(4) The child is discharged from any ongoing order or obligation in relation to the offence.
(5) All conditions imposed under section 27 of the Bail Act 1982 in relation to the offence are discontinued.
(6) To avoid doubt, this section does not apply in relation to a person 12 years of age or older who committed or is alleged to have committed an offence with a child under 12 years of age.
(1) Subject to subsection (2), any child in police custody, in detention or serving a sentence for an offence referred to in section 467(1) must be released as soon as practicable.
(2) A child in police custody, in detention or serving a sentence for another offence is not to be released under subsection (1) if the other offence was committed or alleged to have been committed when the child was 12 years of age or older.
(3) Reasonable steps must be taken to ensure the safe release of a child under subsection (1).
(1) Any charge or conviction against a person for an offence committed or alleged to have been committed when the person was under 12 years of age is expunged.
(2) Subject to sections 470 and 471, a person whose charge or conviction is expunged under this section is to be treated in law as if the person had never committed or been charged with, prosecuted for, convicted of or sentenced for the offence, as the case may be.
(3) A reference in an agreement, an arrangement, any other Act or a statutory instrument to a charge or conviction is taken not to include one expunged under this section.
(4) If a person's charge or conviction is expunged under this section:
(a) it is lawful for the person to claim, on oath or otherwise, including in a proceeding before any court, tribunal or entity, that the person was not charged with or convicted of the offence; and
(b) evidence is not admissible in a proceeding before any court, tribunal or entity to prove the person was charged with or convicted of the offence; and
(c) the person's criminal history no longer includes the charge or conviction; and
(d) the person is not required to disclose information about the charge or conviction; and
(e) a reference to the person's character, however expressed, does not require or allow anyone to take the charge or conviction into account; and
(f) the charge or conviction, or non-disclosure of the charge or conviction, is not a ground for discriminating against, prejudicing or engaging in adverse conduct against the person in any way, including in respect of the following matters:
(i) any appointment, employment, exclusion or dismissal in respect of an office, profession, occupation or employment;
(ii) any grant, issuance, suspension, refusal or revocation of an approval, authorisation, licence, permit or registration; and
(g) the person may, without waiting any minimum period, reapply for any approval, authorisation, licence, permit or registration refused or revoked because of the charge or conviction before it was expunged.
(5) Subsection (4) applies in respect of an indirect reference to an expunged charge or conviction, including a reference to any of the following that may have occurred in relation to the expunged charge or conviction:
(a) an arrest;
(b) an investigation or prosecution;
(c) an appearance in court;
(d) a penalty, sentence or incarceration.
(6) This section has effect despite any other law to the contrary, including:
(a) sections 77(4), 79(3) and 135(3) of the Health Practitioner Regulation National Law (NT) ; and
(b) the Criminal Records (Spent Convictions) Act 1992 ; and
(c) any other law that allows or requires the disclosure of information relating to a charge, conviction, criminal record or criminal history.
(7) The archives service established under the Information Act 2002 must not disclose to the public a record of a charge or conviction expunged under this section unless it first:
(a) takes all reasonable steps to change the record to show that the charge or conviction is expunged; and
(b) includes a warning in the record that it is an offence to disclose a charge or conviction that is expunged.
(8) Any holder of a record of a charge or conviction expunged under this section, other than the archives service, must within a reasonable period of time:
(a) take all reasonable steps to change the record to show that the charge or conviction is expunged; and
(b) include a warning in the record that it is an offence to disclose a charge or conviction that is expunged.
(9) The expungement of a charge or conviction from records under subsections (7) and (8) does not authorise the destruction of any information or document.
No person is entitled to compensation or damages of any kind by reason that:
(a) the person was charged with, or prosecuted for, an offence committed or alleged to have been committed when the person was under 12 years of age; or
(b) the person was found guilty of, convicted of or sentenced for an offence committed or alleged to have been committed when the person was under 12 years of age; or
(c) the person served a sentence for an offence committed or alleged to have been committed when the person was under 12 years of age; or
(d) the person was required to pay a fine, costs, restitution, compensation or other money on account of being convicted of, or sentenced for, an offence committed or alleged to have been committed when the person was under 12 years of age; or
(e) the person has a charge or conviction expunged under section 4469; or
(f) a charge or conviction is expunged under section 469; or
(g) the person incurred any loss, or suffered any consequence, as a result of an event mentioned in paragraph (a), (b), (c), (d), (e) or (f).
Nothing in this Division affects anything lawfully done before a charge or conviction is expunged under section 469.
(1) Sections 38A and 43AQ, as in force immediately after the commencement, apply in relation to:
(a) offences committed before the commencement but for which a trial or hearing to determine guilt had not begun before the commencement; and
(b) offences committed after the commencement.
(2) Sections 38(2) and 43AQ, as in force immediately before the commencement, apply in relation to offences committed before the commencement for which a trial or hearing to determine guilt had begun before the commencement.
(1) A person commits an offence if:
(a) the person has access to a record of a charge or conviction; and
(b) the person intentionally engages in conduct; and
(c) the conduct results in the disclosure of information about a charge or conviction expunged under section 469 and the person is reckless in relation to that result.
Maximum penalty: 50 penalty units or imprisonment for 6 months.
(2) Strict liability applies to subsection (1)(a).
(3) It is a defence to a prosecution for an offence against subsection (1) if:
(a) the disclosure is authorised or required under this Division; or
(b) the disclosure is necessary for the performance of a function or the exercise of a power under this Division; or
(c) the disclosure is made with the written consent of the person whose charge or conviction was expunged; or
(d) the information was made available by an archive or library, or an authorised officer of an archive or library, in a form normally available for public use and in accordance with the normal procedures of the archive or library; or
(e) the disclosure is for statistical or research purposes in a form that cannot identify the person whose charge or conviction was expunged.
Note for subsection (3)
The defendant has an evidential burden in relation to the matters mentioned (see section 43BU of the Criminal Code).
(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith when acting, or purportedly acting, in the exercise of a power or performance of a function by the person under this Division.
(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.
Division 19 Criminal Justice Legislation Amendment (Sexual
Offences) Act 2023
(1) The offence provisions, as inserted or amended by the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023 , apply only in relation to offences committed after the commencement.
(2) The offence provisions, as in force before the commencement, continue to apply in relation to offences committed before the commencement.
(3) Despite subsections (1) and (2):
(a) section 131A continues to apply in relation to an offence committed before the commencement only if the person is charged with the offence before the commencement; and
(b) section 208JI applies in relation to:
(i) an offence committed after the commencement; and
(ii) an offence committed before the commencement if the person is not charged, before the commencement, with an offence against section 131A.
(4) For this section, if any of the conduct constituting an offence occurred before the commencement, the offence is taken to have been committed before the commencement.
(5) In this section:
"commencement" means the commencement of Part 2 of the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023 .
"offence provisions" means the provisions of this Act that create or relate to offences, including provisions that relate to criminal responsibility, defences and penalties.
section 131A means section 131A as in force before the commencement.
In this Division:
amending Act means the Justice Legislation Amendment (Domestic and Family Violence) Act 2023 .
"commencement" means the commencement of Part 4 of the amending Act.
(1) Section 188, as amended by the amending Act, applies only in relation to offences committed after the commencement.
(2) Section 188, as in force before the commencement, continues to apply in relation to offences committed before the commencement.
(3) For this section:
(a) an offence is taken to be committed after the commencement only if all of the conduct constituting the offence occurred after the commencement; and
(b) any other offence is taken to be committed before the commencement.
Section 341B, as inserted by the amending Act, applies in relation to an indictment presented or filed in court after the commencement, even if an offence charged in the indictment is alleged to be committed before the commencement.
Schedule 1 Provisions of Code to which Part IIAA applies
section 1, definition Schedule 1 provision
Section 66 (Offences relating to riots)
Section 103A (Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings or against public officers)
Part IV (Offences against the administration of law and justice and against public authority), Division 1 (Disclosure of confidential information and corruption and abuse of office) (other than sections 83, 85 and 86)
Part V, Division 2 (Child abuse material and indecent articles) and Division 2A (Offence relating to human remains)
Section 148F (Recruiting child to engage in criminal activity)
Part VI (Offences against the person and related matters), Division 1A (Preliminary matters), Subdivision 2 (Interpretation)
Part VI (Offences against the person and related matters), Division 3 (Homicide: suicide: concealment of birth) (other than sections 165, 166 and 170)
Part VI (Offences against the person and related matters), Division 3A (Recklessly endangering life and serious harm, negligently causing serious harm and related offences involving vehicles and vessels)
Section 176A (Drink or food spiking)
Section 180A (Endangering occupants of vehicles and vessels)
Section 186AA (Choking, strangling or suffocating in a domestic relationship)
Part VI (Offences against the person and related matters), Division 7A (Recording and distributing intimate images)
Part VI (Offences against the person and related matters), Division 8 (Termination of pregnancy)
Part VI (Offences against the person and related matters), Division 9 (Defences)
Part VIA (Sexual offences)
Part VII (Property offences and related matters)