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CRIMES ACT 1958 - SECT 51P

Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent

    (1)     It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

        (a)     the child abuse material is an image; and

        (b)     at the time at which the image was first made, the child (B) whose depiction in the image makes it child abuse material—

              (i)     was aged 16 or 17 years; and

              (ii)     was not, or had not been, under A's care, supervision or authority; and

        (c)     the image does not depict an act that is a criminal offence punishable by imprisonment; and

S. 51P(1)(d) amended by No. 5/2018 s. 5.

        (d)     A does not distribute the image to any person other than B; and

        (e)     A is not more than 2 years older than B; and

        (f)     at the time of the conduct constituting the offence, A reasonably believed that B consented to that conduct.

    (2)     In subsection (1) a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves B in producing.

    (3)     For the purposes of subsection (1)(b), the reference to the time at which the image was first made does not include a reference to any later time at which a copy, reproduction or alteration of the image is made.

    (4)     A bears the burden of proving (on the balance of probabilities) the matters referred to in subsection (1)(e) and (f).

Notes

1     References to A and B in this section are references to the same A and B referred to in sections 51B, 51C, 51D, 51G and 51H.

2     An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c) and (d).

S. 51Q inserted by No. 47/2016 s. 16.



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