Part 3 Offences against the person
(1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated.(2) This section does not apply in respect of an injury received before the commencement of this section.
18 Murder and manslaughter defined
(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life or for 25 years.(b) Every other punishable homicide shall be taken to be manslaughter.(2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence.
(1) A person who commits the crime of murder is liable to penal servitude for life.(2) A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person’s natural life.(3) Nothing in this section affects the operation of section 442 (which authorises the passing of a lesser sentence than penal servitude for life).(4) This section applies to murder committed before or after the commencement of this section.(5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply.(6) Nothing in this section affects the prerogative of mercy.
20 Child murder—when child deemed born alive
On the trial of a person for the murder of a child, such child shall be held to have been born alive if it has breathed, and has been wholly born into the world whether it has had an independent circulation or not.
21 Child murder by mother—verdict of contributing to death etc
Whosoever, being a woman delivered of a child is indicted for its murder, shall, if the jury acquit her of the murder, and specially find that she has in any manner wilfully contributed to the death of such child, whether during delivery, or at or after its birth, or has wilfully caused any violence, the mark of which has been found on its body, be liable to penal servitude for ten years.
22 Trial for child murder—verdict of concealment of birth
Where, on the trial of a person for the murder or manslaughter of a child, the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of an offence within section 85, they may acquit him of the offence charged and find him guilty of an offence under the said section, and he shall be liable to punishment accordingly.
(1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child.(2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child.(3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth.
23 Trial for murder—provocation
(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission,(b) the act or omission causing death was not an act done or omitted suddenly, or(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.(5) This section does not exclude or limit any defence to a charge of murder.
(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.(2) It shall be upon the person accused to prove that he is by virtue of subsection (1) not liable to be convicted of murder.(3) A person who but for subsection (1) would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.(4) The fact that a person is by virtue of subsection (1) not liable to be convicted of murder in respect of a death charged shall not affect the question whether any other person is liable to be convicted of murder in respect of that death.(5) Where, on the trial of a person for murder, the person contends:(a) that he is entitled to be acquitted on the ground that he was mentally ill at the time of the acts or omissions causing the death charged, or(b) that he is by virtue of subsection (1) not liable to be convicted of murder,evidence may be offered by the Crown tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.
Whosoever commits the crime of manslaughter shall be liable to penal servitude for 25 years:Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, he may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.
26 Conspiring to commit murder
Whosoever:conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen’s dominions or not, or
shall be liable to penal servitude for 25 years.solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder,
27 Acts done to the person with intent to murder
Whosoever:administers to, or causes to be taken by, any person any poison, or other destructive thing, or
with intent in any such case to commit murder,by any means wounds, or causes grievous bodily harm to any person,
shall be liable to penal servitude for 25 years.
28 Acts done to property with intent to murder
Whosoever:sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or
casts away or destroys any vessel, or
by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or
places, or throws, any matter or thing upon or across a railway, or
with intent in any such case to commit murder,removes, or displaces any sleeper, or other thing belonging to a railway,
shall be liable to penal servitude for 25 years.
29 Certain other attempts to murder
Whosoever:attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or
shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or
with intent in any such case to commit murder,attempts to drown, suffocate, or strangle any person,
shall, whether any bodily injury is effected or not, be liable to penal servitude for 25 years.
30 Attempts to murder by other means
Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to penal servitude for 25 years.
31 Documents containing threats
(1) A person who maliciously, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to penal servitude for 10 years.(2) It is immaterial for the purposes of an offence under this section whether or not a document sent or delivered is actually received, and whether or not the threat contained in a document sent, delivered or received is actually communicated to the person concerned or to the recipient or intended recipient of the document (as relevant in the circumstances).
31A Suicide and attempt to commit suicide
The rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated.
(1) The survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C.(2) In this section, suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his or her own life, but nothing done by a person who enters into a suicide pact shall be treated as being done by the person in pursuance of the pact unless it is done while the person has the settled intention of dying in pursuance of the pact.(3) The onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities.
(1) A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years.(2) Where:(a) a person incites or counsels another person to commit suicide, and(b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel,the firstmentioned person shall be liable to imprisonment for 5 years.
Acts causing danger to life or bodily harm
32 Impeding endeavours to escape shipwreck
Whosoever:maliciously prevents or impedes any person on board of, or having quitted, any ship or vessel in distress, or wrecked, stranded, or cast on shore, in his endeavour to save his life, or
shall be liable to penal servitude for 25 years.maliciously prevents or impedes any person in his endeavour to save the life of such first-mentioned person,
33 Wounding etc with intent to do bodily harm or resist arrest
Whosoever:maliciously by any means wounds or inflicts grievous bodily harm upon any person, or
with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or any other person,maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,
shall be liable to penal servitude for 25 years.
33A Discharging loaded arms with intent
Any person who maliciously discharges, or in any manner attempts to discharge, any kind of loaded arms with intent to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detention either of himself or any other person, shall be liable to penal servitude for fourteen years.
33B Use or possession of weapon to resist arrest etc
Any person who:(a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or(b) threatens injury to any person or property,with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or any other person or to prevent or hinder a member of the police force from investigating any act or circumstance which reasonably calls for investigation by the member shall be liable to penal servitude for 12 years.
34 Feloniously wounding—verdict of minor offence
Where, on the trial of a person for an offence under section 33, the jury are satisfied that the accused is guilty of the wounding, or inflicting grievous bodily harm, mentioned in the indictment, but are not satisfied that he is guilty of the intent charged therein, they may acquit him of such intent and find him guilty of an offence under section 35, and he shall be liable to punishment accordingly.
35 Malicious wounding or infliction of grievous bodily harm
Whosoever maliciously by any means:(a) wounds any person, or(b) inflicts grievous bodily harm upon any person,shall be liable to penal servitude for 7 years.
35A Maliciously cause dog to inflict grievous bodily harm or actual bodily harm
(1) Maliciously cause dog to inflict grievous bodily harm
A person who, having control of a dog, maliciously does any act which causes the dog to inflict grievous bodily harm on another person is liable to penal servitude for 7 years.(2) Maliciously cause dog to inflict actual bodily harm
A person who, having control of a dog, maliciously does any act which causes the dog to inflict actual bodily harm on another person is liable to penal servitude for 5 years.(3) Alternative finding
If, on the trial of a person for an offence under subsection (1), it appears that grievous bodily harm was not inflicted on the other person but that actual bodily harm was inflicted, the person may be found not guilty of the offence charged but guilty of an offence under subsection (2) and be liable to punishment accordingly.(4) Doing an act includes omitting to do the act
In this section, a reference to the doing of an act includes a reference to omitting to do the act.
36 Causing a grievous bodily disease
A person:(a) who maliciously by any means causes another person to contract a grievous bodily disease, or(b) who attempts maliciously by any means to cause another person to contract a grievous bodily disease,with the intent in any such case of causing the other person to contract a grievous bodily disease, is liable to penal servitude for 25 years.
37 Attempts to choke etc (garrotting)
Whosoever:by any means attempts to choke suffocate or strangle any person, or
with intent in any such case to enable himself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence,by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance,
shall be liable to penal servitude for 25 years.
38 Using chloroform etc to commit an offence
Whosoever unlawfully applies or administers to, or causes to be taken by, or attempts to apply or administer to, or cause to be taken by, any person, any chloroform laudanum or other stupefying or over-powering drug or thing, with intent in any such case to enable himself, or another person, to commit, or with intent to assist another person in committing, an indictable offence, shall be liable to penal servitude for 25 years.
39 Using poison etc so as to endanger life
Whosoever maliciously administers to, or causes to be administered to, or taken by, any person, any poison or other destructive or noxious thing, so as to endanger the life of such person, or so as to inflict upon such person grievous bodily harm, shall be liable to penal servitude for ten years.
40 On trial for poisoning—verdict of minor offence
Where, on the trial of a person for an offence under section 39, the jury are not satisfied that the accused is guilty thereof, but are satisfied that he is guilty of an offence within section 41, they may acquit him of the offence charged, and find him guilty of an offence under the said last-mentioned section, and he shall be liable to punishment accordingly.
41 Administering poison etc with intent to injure or annoy
Whosoever maliciously administers to, or causes to be administered to, or taken by, any person, any poison or other destructive or noxious thing, with intent to injure aggrieve or annoy such person, shall be liable to penal servitude for five years.
41A Poisoning etc of water supply
Whosoever maliciously introduces any poison or other destructive or noxious thing into a supply of water with intent to injure any person or persons shall be liable to penal servitude for 5 years.
42 Injuries to child at time of birth
Whosoever, during or after the delivery of a child, maliciously inflicts on such child, whether then wholly born or not, any grievous bodily harm, shall be liable to penal servitude for fourteen years.
43 Exposing or abandoning child under two
Whosoever unlawfully abandons or exposes any child under the age of two years, whereby the life of such child was or is endangered, or its health was or is likely to be seriously injured, shall be liable to penal servitude for five years.
44 Not providing wife, child or servant with food etc
Whosoever:being legally liable to provide any wife, child, ward, apprentice, or servant or any insane person with necessary food, clothing, or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, or
so that, in any such case, his or her life is endangered, or his or her health becomes or is likely to be seriously injured,maliciously does, or causes to be done, any bodily harm to any wife, child, ward, apprentice or servant, or to any insane person
shall be liable to penal servitude for five years.
45 Prohibition of female genital mutilation
(1) A person who:(a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or(b) aids, abets, counsels or procures a person to perform any of those acts on another person,is liable to penal servitude for 7 years.(2) An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State.(3) It is not an offence against this section to perform a surgical operation if that operation:(a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or(b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or(c) is a sexual reassignment procedure and is performed by a medical practitioner.(4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account.(5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts.(6) This section applies only to acts occurring after the commencement of the section.(7) In this section:authorised professional means:
(a) a person authorised to practise midwifery under the Nurses Act 1991 or undergoing a course of training with a view to being so authorised, or(b) in relation to an operation performed in a place outside New South Wales—a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nurses Registration Board, or undergoing a course of training with a view to being so authorised, or(c) a medical student.medical practitioner, in relation to an operation performed in a place outside New South Wales, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the functions of the New South Wales Medical Board.
medical student means:
(a) a registered medical student within the meaning of the Medical Practice Act 1992, or(b) in relation to an operation performed in a place outside New South Wales—a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place.sexual reassignment procedure means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person.
46 Causing bodily injury by gunpowder etc
Whosoever maliciously by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm to, any person, shall be liable to penal servitude for 25 years.
47 Using etc explosive substance or corrosive fluid etc
Whosoever:maliciously causes any gunpowder or other explosive substance to explode, or
maliciously sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or
with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person,maliciously puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance,
shall, whether bodily injury is effected or not, be liable to penal servitude for 25 years.
48 Placing gunpowder near a building etc
Whosoever maliciously places, or throws into, upon, against, or near, any building, ship, or vessel, any gunpowder, or other explosive substance, with intent to do some bodily injury to any person, shall, whether an explosion takes place or not, and whether bodily injury is effected or not, be liable to penal servitude for fourteen years.
(1) Any person who:(a) places or sets, or causes to be placed or set, any trap, device or thing (whether its nature be electronic, electric, mechanical, chemical or otherwise) capable of destroying human life or inflicting grievous bodily harm on any person, or(b) knowingly permits any such trap, device or thing to continue to be placed or set,with intent to inflict grievous bodily harm shall be liable to imprisonment for five years.(2) Nothing in subsection (1) shall extend to any gin or trap, placed with the intention of destroying vermin, or to any trap, device or thing placed in a dwelling-house for the protection thereof.
52A Dangerous driving: substantive matters
(1) Dangerous driving occasioning death
A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:(a) under the influence of intoxicating liquor or of a drug, or(b) at a speed dangerous to another person or persons, or(c) in a manner dangerous to another person or persons.A person convicted of an offence under this subsection is liable to imprisonment for 10 years.
(2) Aggravated dangerous driving occasioning death
A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.(3) Dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:(a) under the influence of intoxicating liquor or of a drug, or(b) at a speed dangerous to another person or persons, or(c) in a manner dangerous to another person or persons.A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
(4) Aggravated dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.(5) When vehicle is involved in impact—generally
For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following:(a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),(c) an impact between the person and the vehicle,(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact,(e) an impact with anything on, or attached to, the vehicle,(f) an impact with anything that is in motion through falling from the vehicle.(6) When vehicle is involved in causing other impacts
For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if:(a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and(b) the prosecution proves that the vehicle caused the impact.(7) Circumstances of aggravation
In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which:(a) the prescribed concentration of alcohol was present in the accused’s blood, or(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or(c) the accused was driving the vehicle to escape pursuit by a police officer.(8) Defences
It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant):(a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug, or(b) to the speed at which the vehicle was driven, or(c) to the manner in which the vehicle was driven.(9) Definitions
In this section:drug has the meaning it has in section 2 (1) of the Traffic Act 1909.
object includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.
prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood.
road means:
(a) a public street within the meaning of the Traffic Act 1909, or(b) any other place.vehicle means:
(a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or(b) a horse-drawn vehicle,whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway.
52AA Dangerous driving: procedural matters
(1) Presumption as to intoxication
For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm.(2) Evidence of intoxication
For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a public street (within the meaning of the Traffic Act 1909) as determined by a blood analysis carried out in accordance with sections 4F and 4G of that Act.(3) Time of intoxication
A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm:(a) if the blood sample that was analysed was taken within 2 hours after the impact, and(b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol.(4) Alternative verdicts
If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 53 or 54 the jury is satisfied that the person is guilty of an offence under section 52A, it may find the accused guilty of the offence under section 52A, and the accused is liable to punishment accordingly.(5) Question of aggravation
If on the trial of a person for an offence under section 52A (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52A (1) or (3), it may find that the accused is guilty of the offence under section 52A (1) or (3), and the accused is liable to punishment accordingly.(6) Double jeopardy
This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who:(a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or(b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts.(7) Definitions
In this section:prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood.
52B Dangerous navigation: substantive matters
(1) Dangerous navigation occasioning death
A person is guilty of the offence of dangerous navigation occasioning death if the vessel navigated by the person is involved in an impact occasioning the death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel:(a) under the influence of intoxicating liquor or of a drug, or(b) at a speed dangerous to the public, or(c) in a manner dangerous to the public.A person convicted of an offence under this subsection is liable to imprisonment for 10 years.
(2) Aggravated dangerous navigation occasioning death
A person is guilty of the offence of aggravated dangerous navigation occasioning death if the person commits the offence of dangerous navigation occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.(3) Dangerous navigation causing grievous bodily harm
A person is guilty of the offence of dangerous navigation causing grievous bodily harm if the vessel navigated by the person is involved in an impact occasioning grievous bodily harm to another person and the person navigating the vessel was, at the time of the impact, navigating the vessel:(a) under the influence of intoxicating liquor or of a drug, or(b) at a speed dangerous to the public, or(c) in a manner dangerous to the public.A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
(4) Aggravated dangerous navigation occasioning grievous bodily harm
A person is guilty of the offence of aggravated dangerous navigation occasioning grievous bodily harm if the person commits the offence of dangerous navigation occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.(5) When vessel is involved in impact—generally
For the purposes of this section, the circumstances in which a vessel is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following:(a) the vessel overturning or running aground while the person is being conveyed in or on the vessel (whether as a passenger or otherwise),(b) an impact between any object and the vessel while the person is being conveyed in or on that vessel (whether as a passenger or otherwise),(c) an impact between the person and the vessel,(d) the impact of the vessel with another vessel or an object in, on or near which the person is at the time of the impact,(e) an impact with anything on, or attached to, the vessel,(f) an impact with anything that was in motion through falling from the vessel.(6) When vessel is involved in causing other impacts
For the purposes of this section, a vessel is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if the death or harm is occasioned through the vessel causing an impact between other vessels or between another vessel and any object or person or causing another vessel to overturn or run aground.(7) Circumstances of aggravation
In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which:(a) the prescribed concentration of alcohol was present in the accused’s blood, or(b) the accused was navigating the vessel at a speed that exceeds the speed limit (if any) applicable to the person navigating the vessel, or to the navigable waters, on which the vessel was navigated at the time of the impact, or(c) the accused was navigating the vessel in an attempt to escape pursuit by a police officer.(8) Defences
It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant):(a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug, or(b) to the speed at which the vessel was navigated, or(c) to the manner in which the vessel was navigated.(9) Definitions
In this section:drug has the meaning it has in section 2 (1) of the Traffic Act 1909.
object includes a pier, wharf, jetty, pontoon, buoy, breakwater, bridge, support, mooring post or platform, navigation aid, retaining wall, marina, boatshed, slipway or swimming enclosure.
prescribed concentration of alcohol means a concentration of 0.15 grams or more of alcohol in 100 millilitres of blood.
vessel means a vessel within the meaning of the Marine (Boating Safety—Alcohol and Drugs) Act 1991.
52BA Dangerous navigation: procedural matters
(1) Presumption as to intoxication
For the purposes of section 52B, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm.(2) Evidence of intoxication
For the purposes of section 52B, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm as determined by a blood analysis carried out in accordance with Part 3 of the Marine (Boating Safety—Alcohol and Drugs) Act 1991.(3) Time of intoxication
A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm:(a) if the blood sample that was analysed was taken within 2 hours after the impact, and(b) unless the accused proves that the concentration of alcohol in the accused’s blood at that time was less than the prescribed concentration of alcohol.(4) Alternative verdicts
If on the trial of a person who is indicted for murder or manslaughter or for an offence under section 54 the jury is satisfied that the person is guilty of an offence under section 52B, it may find the accused guilty of the offence under section 52B, and the accused is liable to punishment accordingly.(5) Question of aggravation
If on the trial of a person for an offence under section 52B (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 52B (1) or (3), it may find that the accused is guilty of the offence under section 52B (1) or (3), and the accused is liable to punishment accordingly.(6) Double jeopardy
This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who:(a) has been convicted or acquitted of an offence under section 52B cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or(b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52B on the same, or substantially the same, facts.(7) Definition
In this section:prescribed concentration of alcohol means a concentration of 0.15 grams or more of alcohol in 100 millilitres of blood.
53 Injuries by furious driving etc
Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years.
54 Causing grievous bodily harm
Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.
Possessing or making explosives, &c, with intent to injure the person
55 Possessing etc gunpowder etc with intent to injure the person
Whosoever knowingly has in his possession, or makes, or manufactures, any gunpowder, explosive substance, or dangerous or noxious thing, or any machine, engine, instrument, or thing:(a) with intent by means thereof to injure, or otherwise commit an offence being felony against the person of any one, or(b) for the purpose of enabling another person to injure, or otherwise commit an offence being felony against the person of any one,shall be liable to penal servitude for five years.
Assaults upon clergymen, officers, and others
56 Obstructing clergyman in discharge of his duties
Whosoever:by threats or force prevents, or endeavours to prevent, any clergyman, or other person duly authorised in that behalf, from officiating in a place of divine worship, or from the performance of his duty in the lawful burial of the dead in a burial-place, or
shall be liable to imprisonment for two years.strikes, or offers any violence to, any clergyman, or minister engaged in, or to the knowledge of the offender about to engage in, any of the duties aforesaid, or going to perform the same,
57 Assault on persons preserving wreck
Whosoever wounds, strikes, or assaults, any person while in the execution of his duty concerning the preservation of a vessel in distress, or any vessel or effects, stranded, or cast on shore, or lying under water, with intent to obstruct him, or thereby in fact obstructing him in the execution of such duty, shall be liable to penal servitude for seven years.
58 Assault with intent to commit felony on certain officers
Whosoever:assaults any person with intent to commit felony, or
assaults, resists, or wilfully obstructs any officer while in the execution of his duty, such officer being a Justice, constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or
shall be liable to imprisonment for 5 years.assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence,
59 Assault occasioning actual bodily harm
Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to penal servitude for five years.
61 Common assault prosecuted by indictment
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.
Offences in the nature of rape, offences relating to other acts of sexual assault, &c
61H Definition of sexual intercourse and other terms
(1) For the purposes of sections 61H–66F, sexual intercourse means:(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:(i) any part of the body of another person, or(ii) any object manipulated by another person,except where the penetration is carried out for proper medical purposes, or(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or(c) cunnilingus, or(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).(2) For the purposes of sections 61H–66F, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.(3) For the purposes of this Act, a person who incites another person to an act of indecency, as referred to in section 61N or 61O, is taken to commit an offence on the other person.
Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude for 14 years.
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude for 20 years.(2) In this section, circumstances of aggravation means circumstances in which:(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or(c) the alleged offender is in the company of another person or persons, or(d) the alleged victim is under the age of 16 years, or(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or(f) the alleged victim has a serious physical disability, or(g) the alleged victim has a serious intellectual disability.
61K Assault with intent to have sexual intercourse
Any person who, with intent to have sexual intercourse with another person:(a) maliciously inflicts actual bodily harm on the other person or a third person who is present or nearby, or(b) threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument,is liable to penal servitude for 20 years.
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.
61M Aggravated indecent assault
(1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years.(3) In this section, circumstances of aggravation means circumstances in which:(a) the alleged offender is in the company of another person or persons, or(b) the alleged victim is under the age of 16 years, or(c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or(d) the alleged victim has a serious physical disability, or(e) the alleged victim has a serious intellectual disability.
(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.(2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.
61O Aggravated act of indecency
(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years.(1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years.(2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with that or another person, is liable to imprisonment for 7 years.(3) In this section, circumstances of aggravation means circumstances in which:(a) the alleged offender is in the company of another person or persons, or(b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or(c) the alleged victim has a serious physical disability, or(d) the alleged victim has a serious intellectual disability.
61P Attempt to commit offence under sections 61I–61O
Any person who attempts to commit an offence under section 61I, 61J, 61K, 61L, 61M, 61N or 61O is liable to the penalty provided for the commission of the offence.
(1) Question of aggravation
If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.(2) Question of consent regarding alleged victim under 16
If on the trial of a person for an offence under section 61I the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66C (1) or 66C (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.(3) Question of consent or authority regarding alleged victim under 16
If on the trial of a person for an offence under section 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66A, 66C (1) or 66C (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.(4) Question of consent regarding incest
If on the trial of a person for an offence under section 61I or 61J the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 78A or 78B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(1) For the purposes of sections 61I and 61J, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.(2) For the purposes of sections 61I and 61J and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated:(a) a person who consents to sexual intercourse with another person:(i) under a mistaken belief as to the identity of the other person, or(ii) under a mistaken belief that the other person is married to the person,is to be taken not to consent to the sexual intercourse, and(a1) a person who consents to sexual intercourse with another person under a mistaken belief that the sexual intercourse is for medical or hygienic purposes is taken not to consent to the sexual intercourse, and(b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) or (a1) is to be taken to know that the other person does not consent to the sexual intercourse, and(c) a person who submits to sexual intercourse with another person as a result of threats or terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse, and(d) a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
(1) For the purposes of sections 61H–61U, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person.(2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence.
61T Offender married to victim
The fact that a person is married to a person:(a) upon whom an offence under section 61I, 61J or 61K is alleged to have been committed is no bar to the firstmentioned person being convicted of the offence, or(b) upon whom an offence under any of those sections is alleged to have been attempted is no bar to the firstmentioned person being convicted of the attempt.
61U Circumstances of certain sexual offences to be considered in passing sentence
Where a person is convicted of:(a) both an offence under section 61I and an offence under section 61K, or(b) both an offence under section 61J and an offence under section 61K,whether at the same time or at different times, the Judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence.
(1) “Carnal knowledge” shall, in every case under this Act, be deemed complete upon proof of penetration only.(2) In this Act, carnal knowledge includes sexual connection occasioned by the penetration of the anus of a female by the penis of any person, or the continuation of that sexual connection.
63 Common law offences of rape and attempted rape abolished
The common law offences of rape and attempted rape are abolished.
64 Trial for rape—verdict of carnal knowledge
Where on the trial of a person for rape committed before the commencement of Schedule 1 to the Crimes (Sexual Assault) Amendment Act 1981, the jury are satisfied that the female was a girl under the age of sixteen years, but above the age of ten years, and that the accused had carnal knowledge of her, but are not satisfied that carnal knowledge was had without her consent, they may acquit him of the rape charged and find him guilty of an offence under section 71, and he shall be liable to punishment accordingly.
65A Sexual intercourse procured by intimidation, coercion and other non-violent threats
(1) In this section:non-violent threat means intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force.
(2) Any person who has sexual intercourse with another person shall, if the other person submits to the sexual intercourse as a result of a non-violent threat and could not in the circumstances be reasonably expected to resist the threat, be liable to penal servitude for 6 years.(3) A person does not commit an offence under this section unless the person knows that the person concerned submits to the sexual intercourse as a result of the non-violent threat.
66 Procuring etc carnal knowledge by fraud
Whosoever:by any false pretence, false representation, or other fraudulent means, or by the use of any intoxicating drug, induces, or procures, a woman to have illicit carnal connection with a man, or by any such means has such connection with a woman, or
shall be liable to penal servitude for fourteen years.having by his language or conduct induced any woman to believe that he is her husband, when in fact he is not, has carnal knowledge of such woman with her consent while she is under such belief,
66A Sexual intercourse—child under 10
Any person who has sexual intercourse with another person who is under the age of 10 years shall be liable to penal servitude for 20 years.
66B Attempting, or assaulting with intent, to have sexual intercourse with child under 10
Any person who attempts to have sexual intercourse with another person who is under the age of 10 years, or assaults any such person with intent to have sexual intercourse, shall be liable to penal servitude for 20 years.
66C Sexual intercourse—child between 10 and 16
(1) Any person who has sexual intercourse with another person who is of or above the age of 10 years, and under the age of 16 years, shall be liable to penal servitude for 8 years.(2) Any person who has sexual intercourse with another person who:(a) is of or above the age of 10 years, and under the age of 16 years, and(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,shall be liable to penal servitude for 10 years.
66D Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16
Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence.
(1) Where on the trial of a person for an offence under section 66A the jury is not satisfied that the other person upon whom the offence was alleged to have been committed was under the age of 10 years, but is satisfied that:(a) the other person was under the age of 16 years, and(b) the accused had sexual intercourse with the other person,it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1), and the accused shall be liable to punishment accordingly.(2) Where on the trial of a person for an offence under section 66A the jury is not satisfied that the other person upon whom the offence was alleged to have been committed was under the age of 10 years or that the accused had sexual intercourse with the other person, but is satisfied that:(a) the other person was under the age of 16 years, and(b) the accused is guilty of an offence under section 66D,it may find the accused not guilty of the offence charged but guilty of an offence under section 66D, and the accused shall be liable to punishment accordingly.(3) Where on the trial of a person for an offence under section 66A the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66B, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.(4) Where on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
66F Sexual intercourse—intellectual disability
(1) In this section:intellectual disability means an appreciably below average general intellectual function that results in the person requiring supervision or social habilitation in connection with daily life activities.
(2) Any person who has sexual intercourse with another person who:(a) has an intellectual disability, and(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person in connection with any facility or programme providing services to persons who have intellectual disabilities,shall be liable to penal servitude for 10 years.(3) Any person who has sexual intercourse with another person who has an intellectual disability, with the intention of taking advantage of the other person’s vulnerability to sexual exploitation, shall be liable to penal servitude for 8 years.(4) Any person who attempts to commit an offence under this section upon another person who has an intellectual disability shall be liable to the penalty provided for the commission of the offence.(5) A person does not commit an offence under this section unless the person knows that the person concerned has an intellectual disability.(6) No prosecution for an offence against this section shall be commenced without the approval of the Attorney General.
69 Trial for carnal knowledge—girl in fact over 10
Where on the trial of a person for an offence under section 67 the jury are satisfied that the girl was of or above the age of ten years, but under the age of sixteen years, and that the accused had carnal knowledge of such girl, they may acquit him of the offence charged and find him guilty of an offence under section 71, and he shall be liable to punishment accordingly.
70 Trial for carnal knowledge—verdict of assault with intent
Where on the trial of a person for an offence under section 67 the jury are satisfied that the girl was of or above the age of ten years, but under the age of sixteen years, but are not satisfied that the accused had carnal knowledge of the girl, and are satisfied that he was guilty of an offence under section 72, they may acquit him of the offence charged and find him guilty of an offence under the said last-mentioned section, and he shall be liable to punishment accordingly.
73 Carnal knowledge by teacher etc
Whosoever, being a schoolmaster or other teacher, or a father, or step-father, unlawfully and carnally knows any girl of or above the age of 16 years, and under the age of 17 years, being his pupil, or daughter, or step-daughter, shall be liable to penal servitude for 8 years.
Whosoever, being a schoolmaster or other teacher, or a father, or step-father, by any means attempts unlawfully and carnally to know any girl of or above the age of 16 years, and under the age of 17 years, being his pupil, or daughter, or step-daughter, or assaults any such girl with intent carnally to know her, shall be liable to penal servitude for 8 years.
Nothing in section 73 or section 74 as respectively in force before the commencement of Schedule 2 to the Crimes (Child Assault) Amendment Act 1985 shall prevent such schoolmaster, teacher, father or step-father from being prosecuted under section 71 or 72.
77 Consent no defence in certain cases
(1) Except as provided by subsection (2), the consent of the child or other person to whom the charge relates shall be no defence to a charge under section 61E (1A), (2) or (2A), 61M (2), 61N (1) or 61O (1) or (2), 66A, 66B, 66C, 66D, 66F, 67, 68, 71, 72, 72A, 73, 74 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76.(2) It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under section 61E (1A), (2) or (2A), 61N (1), 61O (1) or (2), 66C, 66D, 71, 72 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under section 61E (1), 61L, 61M (1) or 76 if the person charged and the child to whom the charge relates are not both male and it is made to appear to the court or to the jury before whom the charge is brought that:(a) the child to whom the charge relates was over the age of 14 years at the time the offence is alleged to have been committed,(b) the child to whom the charge relates consented to the commission of the offence, and(c) the person so charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years.
77A Proceedings in camera in certain cases
(1) This section applies to:(a) a prescribed sexual offence,(b) an offence under section 63, 65, 66, 67, 68, 71, 72, 72A, 73, 74, 76, 76A, 78M, 78N, 78O, 78Q, 91D, 91E, 91F or 91G, and(c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (b).(2) Any proceedings, or any part of any proceedings, in respect of an offence to which this section applies shall, if the Court so directs, be held in camera.(3) If the Court makes a direction under this section, it may (either absolutely or subject to conditions) exempt any person from that direction to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose which the Court thinks fit.(4) The Court may make a direction under this section on its own motion or at the request of any party.(5) In determining whether to make a direction under this section the Court shall consider:(a) the need of the complainant to have any person excluded from those proceedings,(b) the need of the complainant to have any person present in those proceedings,(c) the interests of justice, and(d) any other matter which the Court thinks relevant.(6) In this section:complainant, in relation to any proceedings, means the person, or any of the persons, upon whom the offence with which the accused person stands charged in those proceedings, is alleged to have been committed and includes:
(a) in relation to an offence under section 91D, 91E or 91F, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and(b) in relation to an offence under section 91G, the person under the age of 18 years who is alleged to have been employed for pornographic purposes.
Whosoever, being a male, has carnal knowledge of a female of or above the age of 16 years who is his mother, sister, daughter, or granddaughter, or being a female of or above the age of sixteen years, with her consent permits her grandfather, father, brother, or son to have carnal knowledge of her (whether in any such case the relationship is of half or full blood, or is or is not traced through lawful wedlock) shall be liable to penal servitude for seven years.
Whosoever, being a male, attempts to commit any offence under section 78A, shall be liable to imprisonment for two years.
(1) It shall be a sufficient defence to a charge under section 78A or section 78B that the person charged did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged.(2) It shall be no defence to a charge under section 78A or section 78B that the person with whom the offence is alleged to have been committed consented thereto.
78D Removal from guardianship etc
On the conviction of a father or step-father of an offence under section 73 or section 74 or of a male person of an offence under section 72A or under section 78A or under section 78B, the court may divest the offender of all authority over the female with whom the offence has been committed and, if the offender is the guardian of such female, may remove the offender from such guardianship, and in any such case may appoint any person or persons to be the guardian or guardians of such female during her minority, or for any greater or less period.
78E Rape or attempt—verdict of incest or attempt
If on the trial of any male person for an offence under section 63 or 65 the jury are not satisfied that he is guilty of the offence charged, but are satisfied that he is guilty of an offence under section 78A or under section 78B, they may acquit such person of the offence charged, and find him guilty of an offence under section 78A or under section 78B, and he shall be liable to punishment accordingly.
78F Sanction of Attorney-General
(1) No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General.(2) All proceedings under the said sections shall be held in camera.
78G Definition of “homosexual intercourse” for sections 78H–78Q
In sections 78H–78Q, homosexual intercourse means:(a) sexual connection occasioned by the penetration of the anus of any male person by the penis of any person,(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another male person, or(c) the continuation of homosexual intercourse as defined in paragraph (a) or (b).
78H Homosexual intercourse with male under 10
(cf s 67)
A male person who has homosexual intercourse with a male person under the age of 10 years shall be liable to penal servitude for 25 years.
78I Attempt, or assault with intent, to have homosexual intercourse with male under 10
(cf s 68)
A male person who attempts to have homosexual intercourse with a male person under the age of 10 years, or assaults any such male person with intent to have homosexual intercourse with him, shall be liable to penal servitude for 14 years.
78J Trial for homosexual intercourse offence—male in fact between 10 and 18
(cf ss 69, 70)
(1) Where on the trial of a male person for having homosexual intercourse with a male person under the age of 10 years, the jury is satisfied that the secondmentioned person was of or above that age, but under the age of 18 years, and that the accused had homosexual intercourse with that person, it may acquit him of the offence charged and find him guilty of an offence under section 78K, and he shall be liable to punishment accordingly.(2) Where on the trial of a male person for having homosexual intercourse with a male person under the age of 10 years, the jury is satisfied that the secondmentioned person was of or above that age, but under the age of 18 years, but is not satisfied that the accused had homosexual intercourse with that person, and is satisfied that he was guilty of an offence under section 78L, it may acquit him of the offence charged and find him guilty of an offence under section 78L, and he shall be liable to punishment accordingly.
78K Homosexual intercourse with male between 10 and 18
(cf s 71)
A male person who has homosexual intercourse with a male person of or above the age of 10 years, and under the age of 18 years, shall be liable to penal servitude for 10 years.
78L Attempt, or assault with intent, to have homosexual intercourse with male between 10 and 18
(cf s 72)
A male person who attempts to have homosexual intercourse with a male person of or above the age of 10 years, and under the age of 18 years, or assaults any such male person with intent to have homosexual intercourse with him, shall be liable to penal servitude for 5 years.
78N Homosexual intercourse by teacher etc
(cf s 73)
A male person who, being a schoolmaster or other teacher, or a father, or step-father, has homosexual intercourse with any male person of or above the age of 10 years, and under the age of 18 years, being his pupil, son or step-son, shall be liable to penal servitude for 14 years.
78O Attempt, or assault with intent, to have homosexual intercourse with pupil etc
(cf s 74)
A male person who, being a schoolmaster or other teacher, or a father, or step-father, by any means attempts to have homosexual intercourse with any male person of or above the age of 10 years, and under the age of 18 years, being his pupil, son or step-son, shall be liable to penal servitude for 7 years.
(cf s 75)
Nothing in section 78N or 78O prevents a schoolmaster, teacher, father or step-father from being prosecuted under section 78K or 78L.
(cf s 81A)
(1) Any male person who commits, or is a party to the commission of, an act of gross indecency with or towards a male person under the age of 18 years shall be liable to imprisonment for 2 years.(2) Any person who solicits, procures, incites or advises any male person under the age of 18 years to commit or to be a party to the commission of an act of homosexual intercourse, or an act of gross indecency, with or towards a male person shall be liable to imprisonment for 2 years.
78R Consent no defence in certain cases
(cf s 77)
The consent of a male person the subject of the charge shall be no defence to any charge under section 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q.
(cf ss 78, 78F)
(1) (Repealed)(2) No prosecution for an offence under section 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q or for an offence of attempting, or of conspiracy or incitement, to commit an offence under any of those sections shall, if the accused was at the time of the alleged offence under the age of 18 years, be commenced without the sanction of the Attorney General.
Any person who commits an act of bestiality with any animal shall be liable to penal servitude for fourteen years.
80 Attempt to commit bestiality
Any person who attempts to commit an act of bestiality with any animal shall be liable to penal servitude for five years.
80A Sexual assault by forced self-manipulation
(1) In this section:self-manipulation means the penetration of the vagina (including a surgically constructed vagina) or anus of any person by an object manipulated by the person, except where the penetration is carried out for proper medical or other proper purposes.
threat means:
(a) a threat of physical force, or(b) intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force.(2) Any person who compels, by means of a threat, another person to engage in self-manipulation and the other person could not in the circumstances be reasonably expected to resist the threat, is liable to penal servitude for 14 years or, if the other person is under the age of 10 years, to penal servitude for 20 years.(3) A person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat.
Misconduct with regard to corpses
81C Misconduct with regard to corpses
Any person who:(a) indecently interferes with any dead human body, or(b) improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not),shall be liable to imprisonment for two years.
82 Administering drugs etc to herself by woman with child
Whosoever, being a woman with child,unlawfully administers to herself any drug or noxious thing, or
with intent in any such case to procure her miscarriage,unlawfully uses any instrument or other means,
shall be liable to penal servitude for ten years.
83 Administering drugs etc to woman with intent
Whosoever:unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or
with intent in any such case to procure her miscarriage,unlawfully uses any instrument or other means,
shall be liable to penal servitude for ten years.
Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to penal servitude for five years.
(1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years.(2) It shall be a sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy.
86 Abduction of woman against her will
Whosoever, from motives of lucre, takes away, or detains, against her will, a female of any age who has an interest in property or is a presumptive heiress or next of kin to any one having such interest, with intent to marry or carnally know her, or to cause her to be married, or carnally known, by any person, shall be liable to penal servitude for fourteen years.
87 The like against the will of parent etc
Whosoever fraudulently allures, takes away, or detains any female under the age of twenty-one years, out of the possession and against the will of any person having the lawful charge of her, with intent to marry or carnally know her, or to cause her to be married to or carnally known by any person, shall be liable to penal servitude for seven years.
88 In such cases property of woman to remain hers
No offender under section 86 or section 87 shall be capable of taking any estate or interest in any property in right of any such female, and if any marriage has taken place, the property of the wife shall be settled in such manner as the Supreme Court, at the suit of the Attorney General, may appoint.
89 Forcible abduction of a woman
Whosoever by force takes away, or detains against her will, any female of any age, with intent to marry or carnally know her, or to cause her to be married to or carnally known by any person, shall be liable to penal servitude for fourteen years.
Whosoever unlawfully takes, or causes to be taken, any unmarried girl under the age of sixteen years, out of the possession and against the will of any person having the lawful charge of her, shall be liable to imprisonment for three years.
Whosoever leads takes or entices away or detains a person with intent to hold him for ransom or for any other advantage to any person shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years.This section does not apply to any person who shall, in good faith, have claimed a right to the possession of a person so led, taken or enticed away or detained.
91 Taking child with intent to steal etc
Whosoever:by force or fraud, leads or takes away, entices away, or detains, any child under the age of twelve years, with intent to deprive any person having the lawful charge of such child of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong, or
shall be liable to penal servitude for ten years:receives or harbours any such child, knowing such child to have been so led, taken, enticed away, or detained,
Provided that this section shall not extend to any person who shall, in good faith, have claimed a right to the possession of such child.
Whosoever procures, entices or leads away any person (not being a prostitute), whether with that person’s consent or not for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to penal servitude for seven years.
91B Procuring person by drugs etc
Whosoever by means of any fraud, violence, threat, or abuse of authority, or by the use of any drug or intoxicating liquor, procures, entices, or leads away any person for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to penal servitude for ten years.
Child prostitution and pornography
91C Definitions of “act of child prostitution”, “child”
For the purposes of sections 91C–91G:act of child prostitution means any sexual service, whether or not involving an indecent act:
(a) that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and(b) that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child,and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child.child means a person who is under the age of 18 years.
91D Promoting or engaging in acts of child prostitution
(1) Any person who:(a) by any means, causes or induces a child to participate in an act of child prostitution, or(b) participates as a client with a child in an act of child prostitution,is liable to penal servitude for 10 years or, if the child is under the age of 14 years, to penal servitude for 14 years.(2) Except where the child and the other person alleged to have participated in the act of child prostitution are both male, a person is not guilty of an offence under this section if the person satisfies the court:(a) that the child was not under the age of 14 years when the offence is alleged to have been committed, and(b) that the child consented to the act of child prostitution, and(c) that the person had, when the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child was a person of or above the age of 18 years.(3) The consent of a child is not a defence to a charge relating to an offence under this section, except as provided by subsection (2).
91E Obtaining benefit from child prostitution
(1) Any person who receives money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution is liable to penal servitude for 10 years.(2) A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned:(a) was received by the person for the lawful provision of goods or services, or(b) was paid or provided in accordance with a judgment or an order of a court or a legislative requirement, whether or not under New South Wales law.
91F Premises not to be used for child prostitution
(1) Any person who is capable of exercising lawful control over premises at which a child participates in an act of child prostitution is liable to penal servitude for 7 years.(2) For the purposes of this section, each person:(a) who is an owner, lessee, licensee or occupier of premises,(b) who is concerned in the management of premises or in controlling the entry of persons to, or their movement within, premises,is to be considered as capable of exercising lawful control over the premises, whether or not any other person is capable of exercising lawful control over the premises.(3) A person is not guilty of an offence under this section relating to an act of child prostitution if the person satisfies the court:(a) that the person did not know about the act, or(b) that the person did not know that a child was participating in the act or, for any other reason, did not know that the act was an act of child prostitution, or(c) that the person used all due diligence to prevent the child from participating in the act.
91G Children not to be employed for pornographic purposes
(1) Any person:(a) who employs a child for pornographic purposes, or(b) who causes or procures a child to be so employed, or(c) who, having the care (but not necessarily entitled by law to have the custody) of a child, consents to the child being so employed or allows the child to be so employed,is liable to penal servitude for 5 years or, if the child is under the age of 14 years, to penal servitude for 7 years.(2) For the purposes of this section, a child is employed for pornographic purposes only if money or some other material thing is paid or provided (whether or not to the child) for the employment of the child and, in the course of the child’s employment:(a) the child is engaged in an activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of producing pornography, or(b) the child is in the presence of another person who is so engaged.
Whosoever, being married, marries another person during the life of the former husband or wife, shall be liable to penal servitude for seven years:Provided that no person shall be convicted under this section whose husband or wife has at the time of such second marriage been continually absent from such person for the space of seven years, or, if domiciled in New South Wales at the time of the first marriage, has been continually absent from New South Wales for the space of five years then last past, and was, on reasonable grounds, believed by the accused at the time of the second marriage not to be living, of which facts the proof shall lie on the accused.
Editorial note. See Marriage Act 1961 (Commonwealth), section 94.
Whosoever, whether married or unmarried, marries the husband or wife of any person not continually so absent, as in the proviso to section 92 mentioned, knowing him or her to be married, and the former wife or husband to be alive, shall be liable to penal servitude for five years.Editorial note. See Marriage Act 1961 (Commonwealth), section 94.