An Act to consolidate the Statutes relating to Criminal Law.

Part 1 Preliminary and interpretation

Short title and division into Parts

1   Name of Act and contents

This Act may be cited as the Crimes Act 1900 and is divided into Parts, as follows:

PART 1—PRELIMINARY AND INTERPRETATION:

(1)  Short title and division into Parts—s 1

(2)  Repeals and savings—s 2

(3)  Application of certain sections and Parts—s 3

(3A)  Territorial application of the criminal law of the State—s 3A

(3B)  Misuse of public property by public officials outside the State—s 3B

(4)  Interpretation—ss 4–8

(5)  What offences to be deemed and treated as felonies or misdemeanours—ss 9, 10

PART 2—OFFENCES AGAINST THE SOVEREIGN—Treason–felony—ss 11–16A

PART 3—OFFENCES AGAINST THE PERSON:

(1)  Homicide—ss 17A–25

(2)  Conspiracy to murder—s 26

(3)  Attempts to murder—ss 27–30

(4)  Documents containing threats—s 31

(4A)  Suicide—ss 31A–31C

(5)  Acts causing danger to life or bodily harm—ss 32–54

(6)  Possessing or making explosives, &c, with intent to injure the person—s 55

(7)  Assaults upon clergymen, officers, and others—ss 56–59

(8)  Common assault—s 61

(9)  Offences in the nature of rape, offences relating to other acts of sexual assault, &c—ss 61A–80

(10A)  Misconduct with regard to corpses—s 81C

(11)  Attempts to procure abortion—ss 82–84

(12)  Concealing birth of a child—s 85

(13)  Abduction—ss 86–91B

(13A)  Child prostitution and pornography—ss 91C–91G

(14)  Bigamy—ss 92, 93

PART 3A—OFFENCES RELATING TO PUBLIC ORDER—ss 93A–93E

PART 3B—OFFENCES RELATING TO FIREARMS ETC—ss 93F–93H

PART 4—OFFENCES RELATING TO PROPERTY:

CHAPTER 1—Stealing and like offences:

(aa)  GENERAL—s 93J

(a)  ROBBERY—ss 94–98

(b)  EXTORTION, &c, BY MENACE OR THREAT—ss 99–105

(c)  SACRILEGE AND HOUSEBREAKING—ss 105A–115A

(d)  LARCENY:

(1)  Declaratory—s 116

(2)  General provisions—ss 117–124

(3)  Larceny by bailees—s 125

(4)  Of animals—ss 126–133

(5)  Of written instruments—ss 134–138

(6)  Of things attached to or growing on land—ss 139–140

(8)  In dwelling-house—ss 148, 149

(9)  Of goods in process of manufacture, tools, &c—ss 150, 151

(10)  From ships or wharfs—ss 152, 153

(11)  By tenants or lodgers—s 154

(12)  Of vehicles or boats—ss 154A, 154AA

(12A)  Larceny and illegal use of aircraft—s 154B

(13)  Of electricity—s 154C

(e)  EMBEZZLEMENT OR LARCENY:

(1)  By clerks or servants—ss 155–158

(2)  By persons employed in the Public Service—ss 159, 160

(3)  General deficiency—s 161

(4)  By joint owners—s 162

(5)  Alternative verdict—s 163

(f)  FRAUDS BY FACTORS AND OTHER AGENTS—ss 164–178

(f1)  FRAUDULENT MISAPPROPRIATION—s 178A

(f2)  VALUELESS CHEQUES—s 178B

(f2a)  OBTAINING MONEY, ETC, BY DECEPTION—s 178BA

(f2b)  OBTAINING MONEY, ETC, BY FALSE OR MISLEADING STATEMENTS—s 178BB

(f3)  OBTAINING CREDIT BY FRAUD—s 178C

(g)  FALSE PRETENCES—ss 179–185

(g1)  FRAUDULENT ARRANGEMENTS—s 185A

(h)  CORRUPT REWARDS—s 186

(i)  RECEIVERS—ss 187–193

CHAPTER 2—Criminal destruction and damage:

(1)  Interpretation—s 194

(2)  Crimes against property generally—ss 195–200

(3)  Crimes relating to particular kinds of property etc—ss 201–203

PART 4AA—OFFENCES RELATING TO TRANSPORT SERVICES:

(1)  Offences relating to aircraft, vessels etc—ss 204–210

(2)  Offences relating to railways etc—ss 211–214

PART 4A—CORRUPTLY RECEIVING COMMISSIONS AND OTHER CORRUPT PRACTICES—ss 249A–249J

PART 5—FORGERY AND FALSE INSTRUMENT OFFENCES:

CHAPTER 1—Forgery:

(1)  Declaratory and general—ss 250, 251

(2)  Forgery, etc, of public seals—s 253

(3)  Forgery of Acts, Proclamations, etc—s 255

(4)  Forgery of India bonds, Exchequer bills, etc—s 260

(5)  Forgery, etc, of, or engraving plate, etc, for, Bank notes, etc—ss 265–270

(6)  Forgery, etc, of wills, etc—s 271

(7)  Forgery of signatures of Judge—s 278

(8)  Forgery, etc, of instruments of evidence—ss 285–291

(9)  Falsifying entries of births, deaths, etc—ss 296, 297

(10)  Obtaining or demanding property on forged instruments—s 298

CHAPTER 2—False instruments:

(1)  False instruments—ss 299–307

PART 6—OFFENCES RELATING TO COMPUTERS—ss 308–310

PART 7—PUBLIC JUSTICE OFFENCES:

CHAPTER 1—Definitions—ss 311–313

CHAPTER 2—Interference with the administration of justice—ss 314–319

CHAPTER 3—Interference with judicial officers, witnesses, jurors etc—ss 320–326

CHAPTER 4—Perjury, false statements etc—ss 327–339

CHAPTER 5—Miscellaneous—ss 340–343A

PART 8A—ATTEMPTS—s 344A

PART 9—ABETTORS AND ACCESSORIES—ss 345–351

PART 10—APPREHENSION OF OFFENDERS, POWERS OF SEARCH, POWERS OF ENTRY AND DISCHARGE OF PERSONS IN CUSTODY:

(1)  Apprehension of offenders—ss 352–353C

(2)  Powers of search—ss 357–357E

(2AA)  Powers of entry and search in cases of child prostitution or pornography—s 357EA

(2A)  Powers of entry in cases of domestic violence—ss 357F–357H

(3)  Discharge of persons in custody—s 358

(4)  Disposal of property in the custody of the police—ss 358A, 358B

(5)  Offence relating to escaped prisoners—s 358C

PART 11—PROCEDURE, EVIDENCE, VERDICT, &c:

(1)  As to indictment—Form, venue, amendments, &c—ss 359–393

(2)  Arraignment, plea and trial—ss 394–405I

(3)  Rules respecting evidence—ss 406–424

(4)  Verdict generally—ss 425–427

PART 11A—INTOXICATION—ss 428A–428I

PART 12—SENTENCES:

(2)  Sentences of death—s 431

(3)  Sentences of imprisonment—Hard labour—Solitary confinement—And sureties—s 432

(6)  Order for restitution of property stolen, &c—s 438

(7)  Guilty pleas—s 439

(8)  Sentences for statutory offences—s 440

(8A)  Power to fine in certain cases—s 440A

(8B)  Imposition of fine on deferment or suspension of sentence—s 440B

(9)  Deferred sentences—s 441

(9A)  Commencement of sentence—s 441A

(10)  Reduction of sentence or fine below term or amount fixed—ss 442–442B

(11)  Additional and cumulative sentences—ss 443–447A

PART 13—PROCEEDINGS AFTER SENTENCE:

(A)  EXECUTION OF SENTENCE:

(1)  Capital sentences—ss 448–452

(5)  Sentences of Courts-martial—s 458

(B)  COMMUTATION OR MITIGATION OF SENTENCES—ss 459–464

(C)  CONSEQUENCES, &c, OF CONVICTION FOR FELONY—ss 465–468

PART 13A—REVIEW OF CONVICTIONS AND SENTENCES

(1)  Preliminary—s 474A

(2)  Petitions to Governor—ss 474B, 474C

(3)  Applications to Supreme Court—ss 474D, 474E

(4)  Inquiries—ss 474F–474H

(5)  Court of Criminal Appeal—ss 474I–474N

(6)  General—ss 474O, 474P

PART 13B—OFFENCES PUNISHABLE BY THE SUPREME COURT IN ITS SUMMARY JURISDICTION—ss 475A, 475B

PART 14—OFFENCES PUNISHABLE BY JUSTICES AND PROCEDURE BEFORE JUSTICES GENERALLY:

CHAPTER 1—Indictable offences punishable summarily only by consent of the accused:

(1)  Extent of jurisdiction—s 476

(3)  Procedure in such cases—ss 480–481

CHAPTER 3—Other offences punishable summarily:

(A)  INDICTABLE OFFENCES PUNISHABLE SUMMARILY WITHOUT CONSENT—ss 495–500

(B)  LARCENY AND SIMILAR OFFENCES:

(1)  Larceny, &c, of animals, &c—ss 502–512

(2)  Larceny of things attached to land—ss 513–521A

(3)  Larceny of shipwrecked goods—ss 522–524

(4)  Larceny from a public library, &c—ss 525, 526

(4B)  Person drunk while in charge of vehicle—s 526B

(5)  Fraudulently appropriating or retaining property—s 527

(5A)  Obtaining money, &c, by false representation—s 527A

(5B)  Framing a false invoice—s 527B

(5C)  Persons unlawfully in possession of property—s 527C

(6)  Offering rewards for stolen property—s 528

(7)  Receivers—s 529

(D1)  BOGUS ADVERTISEMENTS—s 545A

(D2)  INTIMIDATION—s 545B

(D3)  JOINING UNLAWFUL ASSEMBLIES, &c—s 545C

(D4)  UNLAWFUL MAKING OR POSSESSION OF EXPLOSIVES

(D5)  UNLAWFUL POSSESSION OF CERTAIN DANGEROUS ARTICLES—s 545E

(E)  ABETTORS—s 546

(E1)  CONSORTING—s 546A

(E2)  INTENT TO REPEAT INDICTABLE OFFENCE—s 546B

(E3)  RESISTING, &c, POLICE—s 546C

(F)  RECOGNIZANCE TO KEEP THE PEACE—s 547

(G)  FALSE STATEMENT RESPECTING BIRTHS, DEATHS, OR MARRIAGES—s 547A

(H)  PUBLIC MISCHIEF—s 547B

(I)  PRYING—s 547C

CHAPTER 4—Procedure, &c, before Justices:

(1)  Alternative methods of procedure—s 548

(2)  Enforcing appearance—s 549

(3)  Certain averments—ss 550, 551

(4)  Jurisdiction of Magistrates not affected by certain matters—s 552

(5)  Reduction of sentence below fixed term—s 553

(6)  Sentence to hard labour—s 554

(7)  Penalties, &c—application—s 555

(8)  Summary conviction, &c, a bar—s 556

PART 15—CONDITIONAL RELEASE OF OFFENDERS—ss 556A–560A

PART 15A—APPREHENDED VIOLENCE—ss 562A–562R

PART 16—MISCELLANEOUS ENACTMENTS—ss 564–580

Repeals and savings

2   Repeals and savings

(1)  The Acts mentioned in the First Schedule hereto are, to the extent therein expressed, hereby repealed, except as to offences committed and things done or commenced before the passing of this Act, which shall be dealt with and continued, and in respect of which every right and liability shall remain as if this Act had not been passed.

(2)  All persons appointed under any Act, or section of an Act, hereby repealed, and holding office at the time of the passing of this Act, shall be deemed to have been appointed hereunder.

(3)  All proclamations, regulations, forms of indictments, records, informations, depositions, convictions, warrants, recognizances, and proceedings, and all orders or directions prescribing the form or kind of instrument to be used in the whipping of offenders, or the manner of its use, made, prescribed, or given under the authority of any Act hereby repealed, and being in force at the time of the passing of this Act, shall be deemed to have been made, prescribed, or given under the authority of this Act.

Application of certain sections and Parts

3   Application of certain Parts of Act

The sections mentioned in the Second Schedule, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried.

Territorial application of the criminal law of the State

3A   Territorial application of the criminal law of the State

(1)  An offence against the law of the State is committed if:

(a)  all elements necessary to constitute the offence (disregarding territorial considerations) exist, and

(b)  a territorial nexus exists between the State and at least one element of the offence.

(2)  A territorial nexus exists between the State and an element of an offence if:

(a)  the element is or includes an event occurring in the State, or

(b)  the element is or includes an event that occurs outside the State but while the person alleged to have committed the offence is in the State.

(3)  The existence of the territorial nexus required by subsection (1) (b) (the necessary territorial nexus) is to be presumed and the presumption is conclusive unless rebutted under subsection (4).

(4)  If a person charged with an offence disputes the existence of the necessary territorial nexus, the court is to proceed with the trial of the offence in the usual way and if at the conclusion of the trial the court, or, in the case of a jury trial, the jury, is satisfied on the balance of probabilities that the necessary territorial nexus does not exist, it must, subject to subsection (5), make or return a finding to that effect and the charge is to be dismissed.

(5)  If the court, or, in the case of a jury trial, the jury, would, disregarding territorial considerations, find the person not guilty of the offence (but not on the ground of mental illness) the court or jury must make or return a finding of not guilty.

(6)  The issue of whether the necessary territorial nexus exists must, if raised before the trial, be reserved for consideration at the trial.

(7)  A power or authority exercisable on reasonable suspicion that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds that the elements necessary to constitute the offence exist (whether or not that person suspects or has any ground to suspect that the necessary territorial nexus with the State exists).

(8)  This section applies to offences committed before or after the commencement of this section but does not apply to an offence if:

(a)  the law under which the offence is created makes the place of commission (explicitly or by necessary implication) an element of the offence, or

(b)  the law under which the offence is created is a law of extraterritorial operation and explicitly or by necessary implication excludes the requirement for a territorial nexus between the State and an element of the offence, or

(c)  proceedings are pending at the commencement of this section in relation to the offence.

(9)  This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction.

(10)  In this section:

event means any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge or any other state of mind).

the State includes:

(a)  the territorial sea adjacent to the State, and

(b)  the sea on the landward side of the territorial sea that is not within the limits of the State.

(11)  If a person charged with a particular offence could be found guilty on that charge of some other offence or offences, that person is, for the purposes of this section, taken to be charged with each offence.

(12)  To avoid doubt, a reference in this section to a trial (whether or not a jury trial) includes a reference to a special hearing within the meaning of the Mental Health (Criminal Procedure) Act 1990.

Misuse of public property by public officials outside the State

3B   Misuse of public property by public officials outside the State

(1)  A public official commits an offence under section 178BA or 178BB if:

(a)  the public official does, or omits to do, outside the State any act or thing that constitutes the offence, and

(b)  (apart from this section) the act or omission would have constituted the offence had it been done, or omitted to be done, within the State, and

(c)  the offence involves public money of the State or other property held by any person for or on behalf of the State.

(2)  A public official who commits an offence by the operation of this section may be dealt with, and is liable to the same punishment, as if the public official had committed the offence within the State.

(3)  A sufficient nexus exists between the State and an element of an offence to which this section applies if the offence is committed by a public official and involves the misuse of public money of the State or other property held by any person for or on behalf of the State.

(4)  The other provisions of this Act, the provisions of other Acts and the common law, in so far as these are applicable, apply to an offence to which this section applies as if it had been committed within the State (for example, section 344A and the rules of law relating to attempts to commit offences apply to such an offence).

(5)  Nothing in this section prevents or affects any other punishment, or any forfeiture, provided under any Act. In particular, nothing in this section prevents or affects any other punishment for a breach of discipline by a public official.

(6)  This section applies only to acts or omissions occurring after the commencement of this section.

(7)  This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction.

(8)  In this section:

public official has the same meaning as it has in the Independent Commission Against Corruption Act 1988.

the State includes:

(a)  the territorial sea adjacent to the State, and

(b)  the sea on the landward side of the territorial sea that is not within the limits of the State.

Interpretation

4   Definitions

(1)  In this Act, unless the context or subject-matter otherwise indicates or requires:

Aircraft includes any machine that can derive support in the atmosphere from the reactions of the air.

Armed, in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument.

Banker includes every director or manager of any banking company, whether incorporated or not, or of any branch thereof, and every person carrying on the business of a banker.

Cattle includes any horse, mare, gelding, colt, foal, filly, ass, mule, bull, cow, ox, steer, heifer, calf, ram, ewe, sheep, lamb, pig, goat, deer, alpaca, llama, vicuna, camel, or dromedary, and every hybrid or cross thereof.

Counsel includes attorneys.

Court and Judge respectively shall be equally taken to mean the Court in which or the Judge before whom the trial or proceeding is had in respect of which either word is used.

Dangerous weapon means:

(a)  a firearm (within the meaning of the Firearms Act 1989), or

(b)  a prohibited weapon or prohibited article (within the meaning of the Prohibited Weapons Act 1989), or

(c)  a spear gun.

Document of title to goods includes every bill of lading, India warrant, dock warrant, warehousekeeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and every bought and sold note or document used in the ordinary course of business as proof of the possession or control of goods, or purporting to authorise by indorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.

Document of title to land includes every deed, certificate of title, map, paper, or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or part of the title, to any real estate or to any interest in or out of real estate.

Domestic violence offence means a personal violence offence committed against:

(a)  a person who is or has been married to the person who commits the offence, or

(b)  a person who is living with or has lived with the person who commits the offence as his wife or her husband, as the case may be, on a bona fide domestic basis although not married to him or her, as the case may be, or

(c)  a person who is living with or has lived ordinarily in the same household as the person who commits the offence (otherwise than merely as a tenant or boarder), or

(d)  a person who is or has been a relative (within the meaning of subsection (6)) of the person who commits the offence, or

(e)  a person who has or has had an intimate personal relationship with the person who commits the offence.

Dwelling-house includes:

(a)  any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,

(b)  a boat or vehicle in or on which any person resides, and

(c)  any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

Governor means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council.

Grievous bodily harm includes any permanent or serious disfiguring of the person.

Indictment includes any information presented or filed as provided by law for the prosecution of offences.

Judge—see Court.

Justice means a Justice of the Peace.

Loaded arms means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown.

Member of the crew in relation to an aircraft means a person having functions or duties on board the aircraft.

Money includes all coined money, whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer.

Night means the period of time commencing at nine of the clock in the evening of each day and concluding at six of the clock in the morning of the next succeeding day.

Offensive weapon and Offensive weapon, or instrument, include a dangerous weapon and also include an imitation or replica of an offensive weapon or of an offensive weapon, or an instrument, as the case may require.

Officer, in relation to a body corporate or public company, includes a person who has been appointed, or acts, as an auditor of the body corporate or public company.

Person, Master, and Employer severally include any society, company, or corporation.

Personal violence offence means:

(a)  an offence under, or mentioned in, section 19, 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 44, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61K, 61L, 61M, 61N or 61O, or

(b)  an offence of attempting to commit an offence referred to in paragraph (a).

Place of Divine worship includes any building or structure ordinarily used for Divine worship.

Prescribed sexual offence means:

(a)  an offence under section 61B, 61C, 61D, 61E, 61I, 61J, 61K, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66F, 78H, 78I, 78K, 78L or 80A,

(b)  an offence (such as an offence under section 37 or 112) which includes the commission, or an intention to commit, an offence referred to in paragraph (a), or

(c)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b).

Prescribed sexual offence proceedings means proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.

Property includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.

Property belonging to a vessel includes every portion of its cargo, and property belonging to any of the officers, crew, or passengers thereof.

Railway includes a tramway, and also includes all stations, buildings, structures and equipment belonging to or associated with a railway or tramway.

Trustee means a trustee on some express trust howsoever created, and includes the heir or personal representative of such trustee, and every other person upon whom the duty of such trust shall have devolved, and also any official manager, assignee, liquidator, or other like officer, acting under any Act relating to joint stock companies or to bankruptcy or insolvency and also an executor or administrator.

Valuable security includes every order or other security whatsoever entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of any part of the British dominions or of any Foreign State, or in any fund of any body corporate, company, or society, whether within or without the British dominions, or to any deposit in any bank; and every debenture, deed, bond, bill, note, cheque, warrant, order, or security whatsoever for money, or for payment of money, whether current in any part of the British dominions or in any Foreign State, and every document of title to land or goods, as herein defined.

Vessel means any ship or vessel used in or intended for navigation, not being an undecked boat.

Weapon and Weapon, or instrument include a dangerous weapon and also include an imitation or replica of a weapon or of a weapon, or an instrument, as the case may require.

(2)  A dwelling-house does not cease to be a dwelling-house by reason only of being temporarily unoccupied.

(3)  Notwithstanding section 35 of the Interpretation Act 1987, every heading to a provision of this Act shall be taken to be part of this Act if it appears in italics or in capital letters.

(4)  In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to an offence mentioned in a specified provision of this Act that has been amended or repealed is, or includes, a reference to an offence mentioned in the provision as in force before the amendment or repeal.

(5)  In this Act, a reference to:

(a)  conviction before Justices, or

(b)  conviction before two Justices,

      includes a reference to conviction before a Local Court.

(6)  For the purposes of the definition of domestic violence offence, a relative is:

(a)  a father, mother, grandfather, grandmother, step-father, step-mother, father-in-law or mother-in-law, or

(b)  a son, daughter, grandson, grand-daughter, step-son, step-daughter, son-in-law or daughter-in-law, or

(c)  a brother, sister, half-brother, half-sister, brother-in-law or sister-in-law, or

(d)  an uncle, aunt, uncle-in-law or aunt-in-law, or

(e)  a nephew or niece, or

(f)  a cousin,

      and includes, in the case of de-facto partners, a person who would be such a relative if the de-facto partners were married.

5   Maliciously

Maliciously: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.

6   Month

In this Act, and in every sentence passed by any Court or Judge or Justice under this or any other Act or at Common Law, unless the contrary is expressed:

Month means a calendar month.

7   “Possession” when criminal

Where by this or any other Act the felonious receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his possession within the meaning of such Act who:

(a)  has any such property in his custody, or

(b)  knowingly has any such property in the custody of another person, or

(c)  knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or not, and whether such property is there had or placed for his own use, or the use of another.

8   “Public place” etc

Where, by this or any other Act, or by any rule, regulation, ordinance or by-law, duly made under or by virtue of the provisions of any Act, any offence, conduct, or language, in a public place, or open and public place, or place of public resort, is made punishable, or a person guilty thereof is made liable to apprehension, the place shall be deemed public for the purposes of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise.

9   What offences felonies

Whenever by this Act a person is made liable to the punishment of penal servitude, the offence for which such punishment may be awarded is hereby declared to be and shall be dealt with as a felony, and wherever in this Act the term felony is used, the same shall be taken to mean an offence punishable by penal servitude.

10   What offences misdemeanours

Whenever by this Act no greater punishment can be awarded than imprisonment, with or without hard labour, or the imposition of a fine, in addition to or without imprisonment, the offence shall be and be dealt with as a misdemeanour only.

Part 2 Offences against the Sovereign

Treason–felony

11   Provisions of 36 Geo III, c 7, and 57 Geo III, c 6, repealed except as to offences against the person of the Sovereign

The provisions of the Act of the Parliament of Great Britain, thirty-sixth George the Third chapter seven, made perpetual by the Act of the Parliament of Great Britain and Ireland fifty-seventh George the Third chapter six, and all the provisions of the last mentioned Act in relation thereto, save such of the same respectively as relate to the compassing, imagining, inventing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment, or restraint of the person of the heirs and successors of His said Majesty King George the Third, and the expressing, uttering, or declaring of such compassings, imaginations, inventions, devices, or intentions, or any of them, shall be and the same are hereby repealed.

12   Compassing etc deposition of the Sovereign—overawing Parliament etc

Whosoever, within New South Wales or without, compasses, imagines, invents, devises, or intends to deprive or depose Our Most Gracious Lady the Queen, her heirs or successors, from the style, honour, or Royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty’s dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or any other of Her Majesty’s dominions, in order, by force or constraint, to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom, or the Parliament of New South Wales, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other of Her Majesty’s dominions, or countries under the obeisance of Her Majesty, her heirs or successors, and expresses, utters, or declares such compassings, imaginations, inventions, devices, or intentions, or any of them, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be liable to penal servitude for 25 years.

13   Time within which prosecution shall be commenced and warrant issued

(1)  No person shall be prosecuted for any felony by virtue of this Part in respect of such compassings, imaginations, inventions, devices, or intentions as aforesaid, in so far as the same are expressed, uttered, or declared by open and advised speaking only, unless:

(a)  information of such compassings, imaginations, inventions, devices, and intentions, and of the words by which the same were expressed, uttered, or declared is given upon oath to one or more Justice or Justices within six days after such words were spoken, and

(b)  a warrant, for the apprehension of the person by whom such words were spoken, is issued within ten days next after such information was given as aforesaid.

(2)  No person shall be convicted of any such compassings, imaginations, inventions, devices, or intentions as aforesaid, in so far as the same are expressed, uttered, or declared by open or advised speaking as aforesaid, except upon his own confession in open Court, or unless the words so spoken are proved by two credible witnesses.

14   In informations more than one overt act may be charged

In any information for any felony under this Part, any number of the matters, acts, or deeds by which such compassings, imaginations, inventions, devices, or intentions as aforesaid, or any of them, have been expressed, uttered, or declared, may be charged against the accused.

15   Information for such felonies valid though the facts may amount to treason

If the facts or matters alleged in an information for any felony under this Part amount in law to treason, such information shall not by reason thereof be deemed void, erroneous, or defective, and if the facts or matters proved on the trial of any person informed against for any felony under this Part amount in law to treason, such person shall not by reason thereof be entitled to be acquitted of such felony, but no person tried for such felony shall be afterwards prosecuted for treason upon the same facts.

16   Nothing herein to affect 25 Ed III, c 2

Nothing contained in this Part shall lessen the force of, or in any matter affect, anything enacted by the Statute passed in the twenty-fifth year of King Edward the Third “A declaration which offences shall be adjudged Treason”.

16A   Procedure in cases of treason

In all cases of treason, whether alleged to have been committed before or after the passing of the Crimes (Amendment) Act 1951, the person charged shall be arraigned and tried in the same manner, and according to the same course and order of trial in every respect as if such person stood charged with murder.

Part 3 Offences against the person

Homicide

17   (Repealed)

17A   Date of death

(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.

19   (Repealed)

19A   Punishment for murder

(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.

22A   Infanticide

(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.

23A   Diminished responsibility

(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.

24   Manslaughter—punishment

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.

25   (Repealed)

Conspiracy to murder

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

solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder,

shall be liable to penal servitude for 25 years.

Attempts to 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

by any means wounds, or causes grievous bodily harm to any person,

with intent in any such case to commit murder,
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

removes, or displaces any sleeper, or other thing belonging to a railway,

with intent in any such case to commit murder,
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

attempts to drown, suffocate, or strangle any person,

with intent in any such case to commit murder,
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.

Documents containing threats

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).

Suicide

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.

31B   Survivor of suicide pact

(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.

31C   Aiding etc suicide

(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

maliciously prevents or impedes any person in his endeavour to save the life of such first-mentioned person,

shall be liable to penal servitude for 25 years.

32A–32C   (Repealed)

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

maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,

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,
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

by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance,

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,
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

maliciously does, or causes to be done, any bodily harm to any wife, child, ward, apprentice or servant, or to any insane person

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,
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

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,

with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person,
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.

49   Setting trap etc

(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.

50–52   (Repealed)

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

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,

shall be liable to imprisonment for two years.

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

assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence,

shall be liable to imprisonment for 5 years.

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.

60   (Repealed)

Common assaults

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

61A–61G   (Repealed)

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.

61I   Sexual assault

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.

61J   Aggravated sexual assault

(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.

61L   Indecent assault

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.

61N   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 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.

61Q   Alternative verdicts

(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.

61R   Consent

(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.

61S   Offenders who are minors

(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.

62   Carnal knowledge—proof

(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.

65   (Repealed)

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

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,

shall be liable to penal servitude for fourteen years.

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.

66E   Alternative verdicts

(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.

67, 68   (Repealed)

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.

71–72A   (Repealed)

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.

74   Attempts

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.

75   Alternative charge

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.

76, 76A   (Repealed)

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.

78   (Repealed)

78A   Incest

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.

78B   Incest attempts

Whosoever, being a male, attempts to commit any offence under section 78A, shall be liable to imprisonment for two years.

78C   Defences

(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.

78M   (Repealed)

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.

78P   Alternative charge

(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.

78Q   Acts of gross indecency

(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.

78S   (Repealed)

78T   Limitations

(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.

79   Bestiality

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.

81–81B   (Repealed)

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.

Attempts to procure abortion

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

unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage,
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

unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage,
shall be liable to penal servitude for ten years.

84   Procuring drugs etc

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.

Concealing birth of a child

85   Concealment of birth

(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.

Abduction

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.

90   Abduction of girl under 16

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.

90A   Kidnapping

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

receives or harbours any such child, knowing such child to have been so led, taken, enticed away, or detained,

shall be liable to penal servitude for ten years:

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.

91A   Procuring etc

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.

Bigamy

92   Bigamy

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.

93   Participator in bigamy

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.

Part 3A Offences relating to public order

93A   Definition

In this Part:

violence means any violent conduct, so that:

(a)  except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and

(b)  it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

93B   Riot

(1)  Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to penal servitude for 10 years.

(2)  It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.

(3)  The common purpose may be inferred from conduct.

(4)  No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)  Riot may be committed in private as well as in public places.

93C   Affray

(1)  A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to penal servitude for 5 years.

(2)  If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3)  For the purposes of this section, a threat cannot be made by the use of words alone.

(4)  No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)  Affray may be committed in private as well as in public places.

93D   Mental element under sections 93B and 93C

(1)  A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.

(2)  A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.

(3)  Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.

93E   Offences of riot, rout, affray abolished

The common law offences of riot, rout and affray are abolished.

Part 3B Offences relating to firearms etc

93F   Definition

In this Part:

firearm has the same meaning as in the Firearms Act 1989 and includes an antique pistol within the meaning of that Act.

93G   Causing danger with firearm or spear gun

(1)  Any person who:

(a)  possesses a loaded firearm or loaded spear gun:

(i)  in a public place, or

(ii)  in any other place so as to endanger the life of any other person, or

(b)  fires a firearm or spear gun in or near a public place, or

(c)  carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person,

      is liable to imprisonment for 10 years.

(2)  For the purposes of this section:

(a)  a firearm is to be regarded as being loaded if there is ammunition:

(i)  in its chamber or barrel, or

(ii)  in any magazine or other device which is in such a position that the ammunition can be fitted into its chamber or barrel by operation of some other part of the firearm, and

(b)  a spear gun is to be regarded as being loaded if a spear, or an instrument or thing similar to a spear, is fitted to it.

(3)  A person is not guilty of an offence under this section for possessing or doing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed it or did it for a lawful purpose.

93H   Trespassing with or dangerous use of firearm or spear gun

(1)  A person who, possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters any building or land (other than a road), unless the person:

(a)  is the owner or occupier of the building or land or has the permission of the owner or occupier, or

(b)  does so with a reasonable excuse, or

(c)  does so for a lawful purpose,

      is liable to imprisonment for 5 years.

(2)  A person who fires a firearm or spear gun in or into any building or on or on to any land, unless the person:

(a)  is the owner or occupier of the building or land or has the permission of the owner or occupier, or

(b)  does so with a reasonable excuse, or

(c)  does so for a lawful purpose,

      is liable to imprisonment for 10 years.

(3)  The onus of proving the matters referred to in subsection (1) (a), (b) and (c) and subsection (2) (a), (b) and (c) lies with the defendant.

93I   (Repealed)

Part 4 Offences relating to property

Chapter 1 Stealing and like offences

GENERAL

93J   Property previously stolen

Where on the trial of a person for any offence which includes the stealing of any property it appears that the property was, at the time when it was taken by the accused, already out of the possession of the owner by reason of its having been previously stolen, the accused may be convicted of the offence charged notwithstanding that it is not proved that the taking by him amounted to an interference with the right to possession of, or a trespass against, the owner.

ROBBERY

94   Robbery or stealing from the person

Whosoever:

robs or assaults with intent to rob any person, or

steals any chattel, money, or valuable security from the person of another,

shall, except where a greater punishment is provided by this Act, be liable to penal servitude for fourteen years.

95   Same in circumstances of aggravation

(1)  Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to penal servitude for twenty years.

(2)  In this section, circumstances of aggravation means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following:

(a)  the alleged offender uses corporal violence on any person,

(b)  the alleged offender maliciously inflicts actual bodily harm on any person,

(c)  the alleged offender deprives any person of his or her liberty.

96   Same (robbery) with wounding

Whosoever commits any offence under section 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to penal servitude for 25 years.

97   Robbery etc or stopping a mail, being armed or in company

(1)  Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person,

robs, or assaults with intent to rob, any person, or

stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same,

      shall be liable to penal servitude for twenty years.

(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to penal servitude for 25 years.

(3) Alternative verdict
If on the trial of a person for an offence under subsection (2) 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 subsection (1), 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.

98   Robbery with arms etc and wounding

Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for 25 years.

EXTORTION, &c, BY MENACE OR THREAT

99   Demanding money with intent to steal

Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to penal servitude for ten years.

100   Letter demanding money etc with menaces

Whosoever sends, delivers, or utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing demanding any property of any person, with menaces or any threat, and without reasonable cause, shall be liable to penal servitude for ten years.

100A   Blackmail by threat to publish etc

(1)  Whosoever with intent to cause gain for himself or any other person, or with intent to procure for himself or any other person any appointment or office, or with intent to cause loss to any person:

(a)  makes any unwarranted demand, and

(b)  supports that demand by making:

(i)  any unwarranted threat to publish,

(ii)  any unwarranted proposal to abstain from publishing, or

(iii)  any unwarranted offer to prevent the publication of,

      any matter or thing concerning any person (whether living or dead),

      shall be liable to penal servitude for ten years.

(2)  For the purposes of this section:

(a)  publish means communicate to any person,

(b)  a demand is unwarranted unless the person making it does so in the belief that he has reasonable grounds for making it,

(c)  a threat, proposal or offer in support of a demand is unwarranted unless the person making it does so in the belief that it is a proper means of supporting the demand,

(d)  gain means gain in money or other property, whether temporary or permanent, and includes a gain by keeping what one has, as well as a gain by getting what one has not, and

(e)  loss means loss in money or other property, whether temporary or permanent, and includes a loss by not getting what one might get, as well as a loss by parting with what one has.

101   Threatening letters

Whosoever sends, delivers, or utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing accusing or threatening to accuse a person of felony, or of having committed, or attempted to commit, an infamous crime as defined in section 104, or of having committed an offence against decency in a public place, with intent in any such case to extort or gain property from any person, shall be liable to penal servitude for fourteen years.

102   Accusing or threatening to accuse of crime to extort money etc

Whosoever, in any manner, by words or otherwise, accuses, or threatens to accuse, either the person to whom such accusation or threat is made, or some other person, of any such crime or offence as is referred to in section 101, with intent in any such case to extort or gain property from any person, shall be liable to penal servitude for ten years.

103   Causing a person by violence or threats to execute deeds etc

Whosoever by unlawful violence to, or restraint of the body of, any person, or by any threat of such violence, or restraint, or by accusing or threatening to accuse a person of any such infamous crime as is defined in section 104, compels, or induces, any person to execute, make, accept, indorse, alter, or destroy, the whole or any part of any valuable security, or to write, impress, or affix, any name or seal upon, or to, any paper or parchment, with intent in any such case to defraud, shall be liable to penal servitude for fourteen years.

104   Term “infamous crime” defined

For the purposes of sections 101, 102 and 103 the term infamous crime shall include offences under sections 61B–61D, the crimes of rape, and buggery, or bestiality, with mankind, or an animal, and every assault with intent to commit, or attempt to commit, any such offence or crime, and every solicitation, promise, or threat, offered, or made, to any person whereby to induce him to commit, or permit, any such offence or crime.

105   Menace may be of violence or accusation etc

It shall be immaterial whether any such menace or threat, as is referred to in sections 99 to 103 both inclusive, is of violence, or injury, or of an accusation to be caused, or made, by the offender, or by any other person, or whether the accusation, if made, shall purport to be that of the offender, or some other person.

SACRILEGE AND HOUSEBREAKING

105A   Definitions

(1)  In sections 106–115A:

circumstances of aggravation means circumstances involving any one or more of the following:

(a)  the alleged offender is armed with an offensive weapon, or instrument,

(b)  the alleged offender is in the company of another person or persons,

(c)  the alleged offender uses corporal violence on any person,

(d)  the alleged offender maliciously inflicts actual bodily harm on any person,

(e)  the alleged offender deprives any person of his or her liberty,

(f)  the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

circumstances of special aggravation means circumstances involving either or both of the following:

(a)  the alleged offender wounds or maliciously inflicts grievous bodily harm on any person,

(b)  the alleged offender is armed with a dangerous weapon.

(2)  The matters referred to in:

(a)  paragraph (c), (d) or (e) of the definition of circumstances of aggravation, or

(b)  paragraph (a) of the definition of circumstances of special aggravation,

      can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred.

(2A)  For the purposes of paragraph (f) of the definition of circumstances of aggravation, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place.

(3)  The definitions in subsection (1) are not mutually exclusive.

106   Breaking and entering place of Divine worship and committing felony

(1)  Whosoever:

breaks and enters any place of Divine worship and commits any felony therein, or,

being in any place of Divine worship, commits any felony therein and breaks out of the same,

      shall be liable to penal servitude for fourteen years.

(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 20 years.

(3) Specially aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 25 years.

107   The like with intent to commit felony

(1)  Whosoever breaks and enters any place of Divine worship, with intent to commit felony therein, shall be liable to penal servitude for ten years.

(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 14 years.

(3) Specially aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 20 years.

108   (Repealed)

109   Entering with intent, or stealing etc in dwelling-house and breaking out

(1)  Whosoever:

enters the dwelling-house of another, with intent to commit felony therein, or,

being in such dwelling-house commits any felony therein,

      and in either case breaks out of the said dwelling-house shall be liable to penal servitude for fourteen years.

(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 20 years.

(3) Specially aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 25 years.

110   Breaking, entering and assaulting with intent to murder etc

Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to penal servitude for 25 years.

111   Entering dwelling-house

(1)  Whosoever enters any dwelling-house, with intent to commit felony therein, shall be liable to penal servitude for ten years.

(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 14 years.

(3) Specially aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 20 years.

112   Breaking etc into any house etc and committing felony

(1)  Whosoever:

breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, and commits any felony therein, or

being in any dwelling-house, or any such building as aforesaid, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, commits any felony therein and breaks out of the same,

      shall be liable to penal servitude for fourteen years.

(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 20 years.

(3) Specially aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 25 years.

113   Breaking etc into any house etc with intent to commit felony

(1)  Whosoever breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty, or to any Government department, or to any municipal or other public authority, with intent to commit felony therein, shall be liable to penal servitude for ten years.

(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 14 years.

(3) Specially aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to penal servitude for 20 years.

114   Being armed etc with intent to commit offence

(1)  Any person who:

(a)  is armed with any weapon, or instrument, with intent to commit an indictable offence or to enter a building and to commit a misdemeanour therein,

(b)  has in his possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

(c)  has his face blackened or otherwise disguised, or has in his possession the means of blacking or otherwise disguising his face, with intent to commit a felony or misdemeanour,

(d)  enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit a felony or misdemeanour in or upon the building,

      shall be liable to penal servitude for seven years.

(2)  For the purposes of subsection (1) (b) conveyance means any cab, carriage, motor car, caravan, trailer, motor lorry, omnibus, motor or other bicycle, or any ship, or vessel, whether decked or undecked, used in or intended for navigation, and drive shall be construed accordingly.

115   The like after a previous conviction

Whosoever, having been convicted of any felony or misdemeanour, afterwards commits any offence mentioned in section 114, shall be liable to penal servitude for ten years.

115A   Alternative verdicts

(1) Aggravated offence reduced to basic offence
If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) 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 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, 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) Specially aggravated offence reduced to aggravated offence
If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) 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 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) as appropriate, 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) Specially aggravated offence reduced to basic offence
If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) 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 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, 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. This subsection does not apply to an offence if the jury proceeds under subsection (2) in relation to it.

LARCENY

Declaratory

116   All larcenies to be of same nature

Every larceny, whatever the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the passing of the Act seventh and eighth George the Fourth, chapter twenty-nine.

General provisions

117   Punishment for larceny

Whosoever commits larceny, or any felony by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to penal servitude for five years.

118   Intent to return property no defence

Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to his own use, or for his own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal.

119   Verdict where several takings proved

Where, on the trial of a person for larceny, it appears that the property alleged in any count to have been stolen at one time, was taken at different times, the prosecutor shall not be required to elect upon which taking he will proceed, unless the Judge so orders:

Provided always that evidence shall not in any such case be given of any taking which occurred more than six months in point of time from any other of such takings.

120   Trial for larceny—verdict of embezzlement etc

Where, on the trial of a person for larceny, it appears that he took the property in such manner as to amount in law to the offence of embezzlement or fraudulent misappropriation, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, or of obtaining property by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, the jury may acquit him of the larceny charged, and find him guilty of such other offence, and he shall be liable to punishment accordingly.

121   Verdict of “larceny or receiving”

Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having feloniously received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that he either stole, or feloniously received, such property, and that they are unable to say which of those offences was committed by him, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the felonious receiving, whichever of the two offences is subject to the lesser punishment.

122   Verdict where persons indicted for joint larceny or receiving

On the trial of any two, or more, persons charged with larceny, and also with having feloniously received property, the jury may find all, or any, of such persons guilty, either of stealing, or feloniously receiving, the property, or part or parts thereof, or may find one, or more, of the said persons guilty of stealing, and the other, or others, of them guilty of feloniously receiving the property, or part or parts thereof.

123   Verdict of misdemeanour

Where, on the trial of a person for larceny, it appears that the property in question was taken, appropriated, or retained, under circumstances amounting to a misdemeanour, the jury may acquit him of the offence charged and find him guilty of such misdemeanour, and he shall be liable to punishment accordingly.

124   Fraudulent appropriation

Where, upon the trial of a person for larceny, it appears:

(a)  that he had fraudulently appropriated to his own use or that of another, the property in respect of which he is indicted, although he had not originally taken the property with any fraudulent intent, or

(b)  that he had fraudulently retained the property in order to secure a reward for its restoration,

the jury may return a verdict accordingly, and thereupon he shall be liable to imprisonment for two years, or to a fine of 20 penalty units, or both.

Larceny by bailees

125   Larceny by bailee

Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any part thereof, or any property into or for which it has been converted, or exchanged, to his own use, or the use of any person other than the owner thereof, although he does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of larceny and liable to be indicted for that offence.

The accused shall be taken to be a bailee within the meaning of this section, although he may not have contracted to restore, or deliver, the specific property received by him, or may only have contracted to restore, or deliver, the property specifically.

Of animals

126   Stealing cattle or killing with intent to steal

Whosoever:

steals any cattle, or

wilfully kills any cattle with intent to steal the carcass, or skin, or other part, of the cattle so killed,

shall be liable to penal servitude for fourteen years.

127   Stealing or killing cattle—uncertainty as to sex or age not to entitle to acquittal

Where, on the trial of a person for an offence under section 126 it appears that he stole, or killed, an animal of the species described in the indictment, but it is uncertain on the evidence what was its sex, or age, such person shall not be entitled to acquittal by reason only of such uncertainty.

128   Trial for stealing cattle—verdict of stealing skins

Where, on the trial of a person for stealing cattle, the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of stealing the carcass, or skin, or part, of such cattle, or of killing the said cattle within section 126, they may acquit him of the offence charged, and find him guilty of such last-mentioned stealing, or killing, and he shall be liable to punishment accordingly.

129   Trial for killing cattle—verdict of stealing

Where, on the trial of a person for the offence of killing cattle within the meaning of section 126, the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of stealing such cattle, they may acquit him of the offence charged, and find him guilty of such stealing, and he shall be liable to punishment accordingly.

130   Trial for stealing cattle—verdict of misdemeanour

Where, on the trial of a person for stealing cattle, the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of an offence within section 131, 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.

131   Unlawfully using etc another person’s cattle

Whosoever:

takes and works, or otherwise uses, or takes for the purpose of working, or using, any cattle the property of another person without the consent of the owner, or person in lawful possession thereof, or

takes any such cattle for the purpose of secreting the same, or obtaining a reward for the restoration or pretended finding thereof, or for any other fraudulent purpose, or

fraudulently brands, or ear-marks, or defaces, or alters, the brands or ear-marks of any cattle the property of another person,

shall be liable to imprisonment for three years.

132   Stealing dogs

Whosoever, having been summarily convicted under this or any former Act, of any such offence as is hereinafter in this section mentioned, afterwards,

steals any dog, or

has unlawfully in his possession any stolen dog, or the skin of any stolen dog, knowing such dog to have been stolen,

shall be liable to imprisonment for one year.

133   Taking money to restore dogs

Whosoever corruptly takes any money or reward, directly or indirectly, under pretence, or upon account, of aiding any person to recover any dog which has been stolen, or which is in the possession of any person other than its owner, shall be liable to imprisonment for one year.

Of written instruments

134   Stealing, destroying etc valuable security

Whosoever steals, embezzles, or for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any valuable security, shall be liable, as if he had stolen a chattel, to be punished as for larceny.

135   Stealing, destroying etc wills or codicils

Whosoever steals, or, for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any will, codicil, or other testamentary instrument, either during the life of the testator, or after his death, or whether the same relates to real, or personal estate, or to both, shall be liable to penal servitude for seven years.

136   Proviso to sections 134 and 135

No person shall be convicted under section 134 or section 135 in respect of any act done by him, if, before being charged with the offence, he first disclosed such act on oath, under compulsory process, in a proceeding instituted in good faith by a party aggrieved, or under compulsory examination in some matter in bankruptcy, or insolvency, or under compulsory examination in some matter in the liquidation of a corporation.

137   Civil remedies not affected by conviction

(1)  Nothing in section 134 or in section 135, nor any proceeding, conviction, or judgment thereupon, shall affect any remedy at law, or in equity, which any party aggrieved would have had if this Act had not been passed.

(2)  No evidence of the conviction of any person under either of the said sections shall be admissible in any action, or suit, against him.

138   Stealing, destroying etc records etc of any court or public office

Whosoever steals, or for any fraudulent purpose, takes from its place of deposit, for the time being, or from any person having the lawful custody thereof, or unlawfully and maliciously cancels, obliterates, injures, or destroys, the whole or any part, of any record, document, or writing, of, or belonging to, any Court, or relating to any matter or cause, civil or criminal, pending, or terminated, in any Court, or relating to the business of any office or employment under Her Majesty, and being in any public office, shall be liable to penal servitude for seven years.

Of things attached to or growing on land

139   Stealing etc metal, glass, wood etc fixed to house or land

Whosoever steals, or rips, cuts, severs, or breaks with intent to steal, any glass, or woodwork, belonging to any building, or any metal, or any utensil, or fixture, whether made of metal or other material, or of both respectively, fixed in, or to, any building, or anything made of metal, fixed in any land being private property, or used as a fence to any dwelling-house, garden, or area, or being in any square, or street, or in, or on, any place dedicated to public use or ornament, or in any burial-ground, shall be liable to be punished as for larceny.

140   Stealing etc trees etc in pleasure-grounds etc

Whosoever:

steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood, growing in any park, pleasure-ground, garden, orchard, or avenue, or in any ground belonging to any dwelling-house, where the value of the article stolen, or the amount of injury done, exceeds two dollars, or

steals, or destroys or damages with intent to steal, the whole, or any part, of any tree, sapling, shrub, or plant, or any underwood respectively growing elsewhere than in any situation beforementioned, where the value of the article stolen, or the amount of injury done, exceeds ten dollars,

shall be liable to be punished as for larceny.

141–147   (Repealed)

In dwelling-house

148   Stealing property in a dwelling-house

Whosoever steals in a dwelling-house any property shall be liable to penal servitude for seven years.

149   The same with menaces

Whosoever steals any property in a dwelling-house, and uses thereafter any menace or threat to any person therein, shall be liable to penal servitude for fourteen years.

Of goods in process of manufacture, tools, &c

150   Stealing goods in process of manufacture

Whosoever steals, to the value of one dollar, any goods, article, or material, while anywhere placed, or exposed, during the process or progress of manufacture, shall be liable to penal servitude for a term not exceeding three years.

151   Selling etc materials to be manufactured

Whosoever, being, for the purpose of manufacture, or any special purpose connected with manufacture, employed to make, prepare, or work up, any goods, article, or material, or being for any such purpose entrusted with any such goods, article, or material, or with any tools, or apparatus, sells, pawns, purloins, secretes, embezzles, exchanges, or otherwise fraudulently disposes of the same, or any part thereof, shall be liable to imprisonment for four years.

From ships or wharfs

152   Stealing from ship in port or on wharfs etc

Whosoever:

steals any property in any vessel, barge, or boat, while in any haven, or port, or upon any navigable river, or canal, or in any creek, or basin, belonging to, or communicating with, any such haven, port, river, or canal, or

steals any property from any dock, wharf, or quay,

shall be liable to penal servitude for seven years.

153   Stealing from ship in distress or wrecked

Whosoever steals, or plunders, any part of any vessel in distress, or wrecked, stranded, or cast on shore, or any property of any kind to the value of two dollars belonging to such vessel, shall be liable to penal servitude for ten years.

By tenants or lodgers

154   Tenants etc stealing articles let to hire

Whosoever, being the tenant, or occupier, of any house, building, or lodging, steals any chattel, or fixture let to be used therewith, whether the contract was entered into by the accused, or by any person on his behalf, shall be liable to be punished as for larceny.

Of vehicles or boats

154A   Taking a conveyance without consent of owner

(1)  Any person who:

(a)  without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or

(b)  knowing that any conveyance has been taken without such consent, drives it or allows himself to be carried in or on it,

      shall be deemed to be guilty of larceny and liable to be indicted for that offence.

(2)  For the purposes of this section conveyance means any cart, wagon, cab, carriage, motor car, caravan, trailer, motor lorry, tractor, earth moving equipment, omnibus, motor or other bicycle, or any ship, or vessel, whether decked or undecked, used or intended for navigation, and drive shall be construed accordingly.

154AA   Car stealing etc

(1)  Any person who steals a motor car is liable to penal servitude for 10 years.

(2)  In this section:

motor car means any motor vehicle (as defined in the Motor Traffic Act 1909) but does not include a caravan, trailer or motor vehicle constructed principally for use in agricultural production.

Larceny and illegal use of aircraft

154B   Stealing aircraft and unlawfully taking or exercising control of aircraft

(1)  Whosoever steals any aircraft shall be liable to penal servitude for ten years.

(2)  Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft shall be deemed to be guilty of larceny and be liable to penal servitude for seven years.

(3)  Whosoever without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to penal servitude for fourteen years.

(4)  Whosoever without lawful excuse, by force or violence or threat of force or violence, or by any trick or false pretence, takes or exercises control, whether direct or through another person, of an aircraft while another person, not being an accomplice of the first-mentioned person, is on board the aircraft shall be deemed to be guilty of larceny and be liable to penal servitude for twenty years.

154C   (Repealed)

EMBEZZLEMENT OR LARCENY

By clerks and servants

155   Definition of clerk or servant

Every person employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although temporarily only, or employed also by other persons, or employed to pay as well as receive moneys, or although he had no authority from his employer to receive money, or other property, on his account, shall be deemed a clerk, or servant.

156   Larceny by clerks or servants

Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to penal servitude for ten years.

157   Embezzlement by clerks or servants

Whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him, for, or in the name, or on the account of, his master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to penal servitude for ten years.

158   Destruction, falsification of accounts etc by clerk or servant

Whosoever, being a clerk, or servant, or person acting in the capacity of a clerk, or servant,

destroys, alters, mutilates, or falsifies, any book, paper, writing, valuable security, or account, belonging to, or in the possession of, or received for his employer, or

makes, or concurs in making, any false entry in, or omits, or alters, or concurs in omitting or altering, any material particular from, or in, any such book, or writing, or account,

with intent in any such case to defraud,
shall be liable to penal servitude for five years.

By persons employed in the Public Service

159   Larceny by persons in Public Service

Whosoever, being employed in the Public Service, steals any property, or any part thereof, intrusted to him, or taken into his possession, or being in his custody, or under his control, by virtue or colour of such employment, shall be liable to penal servitude for ten years.

160   Embezzlement etc by persons in the Public Service

Whosoever, being employed in the Public Service, fraudulently embezzles any property, or any part thereof, so intrusted to him, or taken into his possession, or being in his custody, or under his control, or fraudulently secretes, removes, or in any manner fraudulently applies, or disposes of, the same, or any part thereof, shall be deemed to have stolen the same, and shall be liable to penal servitude for ten years.

General deficiency

161   Proof of general deficiency in accounts

On the prosecution of a person for larceny, or embezzlement as a clerk, or servant, or as a person employed in the Public Service, where the charge is in respect of money, it shall not be necessary to prove the larceny, or embezzlement, by the accused of any specific sum of money, if there is proof of a general deficiency on the examination of the books of account, or entries kept, or made by him, or otherwise, and the jury are satisfied that he stole, or fraudulently embezzled the deficient money, or any part thereof.

By joint owners

162   Larceny etc by joint owners

Whosoever, being a member of any copartnership, or being one of two, or more, joint owners, steals, or embezzles, any property of, or belonging to, such copartnership, or joint owners, may be convicted of, and punished for, the offence as if he was not a member of the copartnership, or one of such joint owners.

Copartnership shall, for the purposes of this section, include all corporations and societies whatsoever.

Alternative verdict

163   Trial for embezzlement—verdict of larceny

Where, on the trial of any person for embezzlement, or the fraudulent application, or disposition, of property as a clerk, or servant, or person employed in the Public Service, it appears that he obtained the property in such manner as to amount in law to larceny, the jury may acquit him of the offence charged, and find him guilty of larceny, or of larceny as such clerk, servant, or person, as the case may be, and he shall be liable to punishment accordingly.

FRAUDS BY FACTORS AND OTHER AGENTS

164   Terms “agents”, “intrusted” and “misappropriate”

For the purposes of sections 165 to 171 both inclusive:

intrusted means intrusted, either solely, or jointly, with any other person.

agent includes bankers, merchants, attorneys, factors, brokers, and every other person acting in the capacity of an agent so intrusted.

misappropriate means appropriate in any manner whether by sale, pledge, or otherwise, to the agent’s own use or benefit, or the use or benefit of some one other than the person, by, or for whom, he was so intrusted.

165   Agent misappropriating money etc intrusted to him

Whosoever having been intrusted as an agent with any money, or security for the payment of money, with a direction in writing to apply, pay, or deliver, such money or security, or any part thereof, respectively, or the proceeds, or any part of the proceeds, of such security for any purpose, or to any person specified in such direction, misappropriates in any manner such money, security, or proceeds, or any part thereof, respectively, in violation of good faith, and contrary to the terms of such direction, shall be liable to penal servitude for ten years.

166   The like as to goods etc intrusted to him

Whosoever having been intrusted as an agent with any chattel, or valuable security, for safe custody, or for any special purpose, without authority to sell, negotiate, transfer, or pledge the same, or with any power of attorney for the sale, or transfer, of any share, or interest, in any public stock, or fund, or in any stock, or fund of any body corporate, or company, misappropriates in any manner such chattel, or security, or the proceeds of the same, or any part thereof, or the share, or interest, in the stock or fund, to which such power of attorney relates, or any part thereof, in violation of good faith, and contrary to the purpose for which such chattel, security, or power of attorney, was intrusted to him shall be liable to penal servitude for ten years.

167   Not to affect trustees or mortgagees nor to restrain agents from receiving money on valuable securities etc

Nothing in section 165 or section 166 shall affect any trustee under any instrument, or any mortgagee of property, in respect of any act done by such trustee, or mortgagee, in relation to the property comprised in, or affected by, the trust, or mortgage, or shall restrain an agent from receiving money payable upon any valuable security according to the tenor and effect thereof, or from disposing of property on which he has any claim entitling him by law so to do, unless such disposal extends to more than is requisite for satisfying such claim.

168   Fraudulent sale of property by agent

Whosoever, being an agent intrusted with property for safe custody, fraudulently sells, negotiates, transfers, pledges, or in any manner misappropriates, the same, or any part thereof, shall be guilty of a misdemeanour.

169   The same by person under power of attorney

Whosoever, being intrusted with any power of attorney for the sale, or transfer, of property, fraudulently sells, transfers, or otherwise misappropriates the same, or any part thereof, shall be liable to penal servitude for ten years.

170   Agent obtaining advances on property of his principal

Whosoever, being an agent intrusted with property for the purpose of sale, or otherwise disposing of the same,

otherwise than for the use of his principal, and in violation of good faith, transfers, consigns, pledges, or delivers the same, or any part thereof, as security for money, or other valuable thing, borrowed, or received, or to be borrowed, or received, by such agent, or,

otherwise than for the use of his principal, and in violation of good faith, obtains any advance of money, or other valuable thing, upon any undertaking by him to transfer, consign, pledge, or deliver such property, or any part thereof, or

assists in the making of any such transfer, consignment, pledge, or delivery, or in the obtaining of any such advance, knowing the same in any such case to be in violation of good faith,

shall be liable to penal servitude for ten years:

Provided that nothing in this section shall extend to any transfer, consignment, pledge, or delivery, made, or agreed to be made, as security for no greater sum than the amount, if any, then due to such agent, and of any current bill, or bills, drawn by, or on account of, his principal and accepted by such agent.

171   What to be deemed intrusting with goods etc

For the purposes of section 170:

(1)  every agent intrusted with the possession of a document of title to property, whether derived immediately from the owner of the property, or obtained by such agent by reason of his having possession of such property, or of some other document of title thereto, shall be deemed to have been intrusted with the property indicated by such document,

(2)  every transfer, pledge, or delivery, of any such document shall be deemed a transfer, pledge, or delivery, of the property indicated by the same,

(3)  where any such document, or the property thereby indicated, is held by any person on the behalf, or subject to the control, of any such agent, the same shall be taken to be in the possession of such agent,

(4)  every agent in possession of property, or of any such document of title, shall be taken to have been intrusted therewith by the owner, unless the contrary is shown.

172   Trustees fraudulently disposing of property

Whosoever, being a trustee of property for the use or benefit, wholly or partially, of some other person or for any public or charitable purpose,

converts, or appropriates, the same, or any part thereof, for the use or benefit of himself, or some other person, or for any other than such public or charitable purpose, or,

otherwise disposes of, or destroys such property, or any part thereof,

in violation in any such case of good faith, and with intent to defraud, shall be liable to penal servitude for ten years:

Provided that no prosecution shall be instituted under this section without the leave of the Supreme Court or of the Attorney-General.

173   Directors etc fraudulently appropriating etc property

Whosoever, being a director, officer, or member, of any body corporate, or public company,

fraudulently takes, or applies, for his own use or benefit, or any use or purpose other than the use or purpose of such body corporate, or company, or

fraudulently destroys any of the property of such body corporate, or company,

shall be liable to penal servitude for 10 years.

174   Directors etc omitting certain entries

Whosoever, being a director, or officer of any body corporate, or public company, receives, or possesses himself, of any of the property of such body corporate, or company, otherwise than in payment of a just debt, and, with intent to defraud, omits to make, or direct to be made, a true and sufficient entry thereof in the books, or accounts, of such body corporate, or company, shall be liable to penal servitude for 10 years.

175   Director etc wilfully destroying etc books of company etc

Whosoever, being a director, officer, or member, of any body corporate, or public company,

destroys, alters, mutilates, or falsifies, any book, entry, paper-writing, or valuable security, belonging to such body corporate, or company, or

makes, or concurs in making, any false entry, or omits, or concurs in omitting, any material particular in any book of account, or other document,

with intent in any such case to defraud,
shall be liable to penal servitude for 10 years.

176   Director or officer publishing fraudulent statements

Whosoever, being a director, or officer, of any body corporate, or public company, makes, circulates, or publishes, or concurs in making, circulating, or publishing, any written statement, or account, which he knows to be false in any material particular, with intent to deceive, or defraud, any member, shareholder, or creditor, of such body corporate, or company, or with intent to induce any person to become a shareholder, or partner therein, or to intrust, or advance, any property to such body corporate, or company, or to enter into any security for the benefit thereof, shall be liable to penal servitude for 10 years.

176A   Directors etc cheating or defrauding

Whosoever, being a director, officer, or member, of any body corporate or public company, cheats or defrauds, or does or omits to do any act with intent to cheat or defraud, the body corporate or company or any person in his dealings with the body corporate or company shall be liable to imprisonment for 10 years.

177   Proviso to sections 165 to 176 inclusive

No person shall be convicted of any offence under any of the sections from section 165 to section 176 both inclusive in respect of any act or omission by him, if, before being charged with the offence, he first disclosed such act or omission, on oath, under compulsory process, in a proceeding instituted by a party aggrieved, or under compulsory examination in some matter in bankruptcy, or insolvency, or under compulsory examination in some matter in the liquidation of a corporation.

178   No relief from compulsory disclosures

(1)  Nothing in sections 165 to 176 both inclusive shall relieve any person from making a full discovery, by answer to interrogatories, or from answering any question in a civil proceeding.

(2)  No evidence of the conviction of any person, under any of the said sections, shall be admissible in any suit against him.

(3)  Nothing in the said sections, nor any proceeding or conviction under them, shall affect any remedy which any party would have had if this Act had not been passed, nor shall affect any agreement entered into, or security given, by a trustee, having for its object the restoration, or repayment, of any trust property misappropriated.

FRAUDULENT MISAPPROPRIATION

178A   Fraudulent misappropriation of moneys collected or received

Whosoever having collected or received any money or valuable security upon terms requiring him to deliver or account for or pay to any person the whole or any part of:

(a)  such money or valuable security or the proceeds thereof, or

(b)  any balance of such money, valuable security, or proceeds thereof after any authorised deductions or payments have been made thereout,

fraudulently misappropriates to his own use or the use of any other person, or fraudulently omits to account for or pay the whole or any part of such money, valuable security, or proceeds, or the whole or any part of such balance in violation of the terms on which he collected or received such money or valuable security, shall be liable to penal servitude for seven years.

For the purposes of this section any such money, valuable security, or proceeds thereof, or any balance thereout shall be deemed to be the property of the person who authorised the collection or receipt of the money or valuable security or from whom the money or valuable security was received notwithstanding that the accused may have been authorised to make any deduction thereout on his own behalf, or any payment thereout to another person, or to mix such money, valuable security, or proceeds thereof, or such balance with his own moneys.

VALUELESS CHEQUES

178B   Valueless cheques

Whosoever obtains any chattel, money or valuable security by passing any cheque which is not paid on presentation shall, unless he proves:

(a)  that he had reasonable grounds for believing that that cheque would be paid in full on presentation, and

(b)  that he had no intent to defraud,

be liable to imprisonment for one year, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed.

OBTAINING MONEY, ETC, BY DECEPTION

178BA   Obtaining money etc by deception

(1)  Whosoever by any deception dishonestly obtains for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for 5 years.

(2)  In subsection (1):

deception means deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including:

(a)  a deception as to the present intentions of the person using the deception or of any other person, and

(b)  an act or thing done or omitted to be done with the intention of causing:

(i)  a computer system, or

(ii)  a machine that is designed to operate by means of payment or identification,

      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.

OBTAINING MONEY, ETC, BY FALSE OR MISLEADING STATEMENTS

178BB   Obtaining money etc by false or misleading statements

Whosoever, with intent to obtain for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.

OBTAINING CREDIT BY FRAUD

178C   Obtaining credit by fraud

Whosoever incurring any debt or liability obtains credit by any false pretence or by any wilfully false promise or partly by a false pretence and partly by a wilfully false promise or by any other fraud shall be liable to imprisonment for one year.

FALSE PRETENCES

179   False pretences etc

Whosoever, by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, obtains from any person any property, with intent to defraud, shall be liable to penal servitude for five years.

180   Causing payment etc by false pretence etc

Where the accused, by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, causes, or procures, any money to be paid, or any property to be delivered, to himself, or any other person for the use or benefit, or on account of himself, or any other person, with intent to defraud, he shall be deemed to have obtained the same within the meaning of section 179.

181   False pretence of title

Where the accused falsely, and with intent to defraud, represents that he has a title, or right, to certain property, or to convey, or dispose of, certain property, knowing such representation to be false, and thereby obtains any property, he shall be deemed to have obtained the same within the meaning of section 179.

182   Accused may be convicted on a charge of false pretences etc though property obtained partly by a false promise

Where, on the trial of a person for obtaining property by any false pretence or by any wilfully false promise, it appears that the property was obtained partly by a false pretence and partly by a wilfully false promise, such person shall not by reason thereof be entitled to acquittal.

183   Trial for false pretences etc—verdict of larceny

Where, on the trial of a person for obtaining property by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, it appears that he obtained the property in such manner as to amount in law to larceny or fraudulent misappropriation, the jury may acquit him of the offence charged, and find him guilty of larceny, or of larceny as a clerk, or servant, or a person employed in the Public Service, or of fraudulent misappropriation, as the case may be, and he shall be liable to punishment accordingly.

184   Fraudulent personation

Whosoever falsely personates, or pretends to be, some other person, with intent fraudulently to obtain any property, shall be liable to penal servitude for seven years.

Nothing in this section shall prevent any person so personating, or pretending, from being proceeded against in respect of such act, or pretence, under any other enactment or at Common Law.

184A   Personating owner of stock or property

A person who falsely and deceitfully personates:

(a)  any owner of any share or interest of or in any stock, annuities or other public funds or of or in the capital stock of any body corporate, or

(b)  any owner of any dividend or money payable in respect of a share or interest referred to in paragraph (a), or

(c)  any owner of any property, or any estate or interest in or charge or encumbrance on property,

and transfers, or endeavours to transfer, any share, estate or interest belonging to the owner or receives, or endeavours to receive, any money due to the owner as if the person were the true owner is liable to penal servitude for 10 years.

185   Inducing persons by fraud to execute instruments

Whosoever, with intent to defraud or injure any person, causes, or induces, any person, by any false pretence, to execute, make, accept, indorse, or destroy, the whole, or any part, of any valuable security, or to write, impress, or affix, any name, or seal, upon any paper, or parchment, in order that the same may be afterwards made or converted into, or used or dealt with as a valuable security, shall be liable to penal servitude for seven years.

Fraudulent arrangements

185A   Inducing persons to enter into certain arrangements by misleading etc statements etc

(1)  Whosoever, by any statement, promise or forecast which he knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making (dishonestly or otherwise) of any statement, promise or forecast which is misleading, false or deceptive, induces or attempts to induce another person to take part or offer to take part in any arrangement with respect to property other than marketable securities, being arrangements the purpose or effect, or pretended purpose or effect, of which is to enable persons taking part in arrangements (whether by becoming owners of the property or any part of the property or otherwise) to participate in or receive profits or income alleged to arise or to be likely to arise from the acquisition, holding, management or disposal of such property, or sums to be paid or alleged to be likely to be paid out of such profits or income, shall be liable to penal servitude for five years.

(2)  Any person guilty of conspiracy to commit an offence under subsection (1) shall be punishable as if he had committed such an offence.

(3)  Without limiting the generality of subsection (1) a statement, promise or forecast shall, for the purposes of that subsection, be deemed to be misleading or deceptive if it is of such a nature that it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the statement, promise or forecast indicates that that state of affairs does exist.

(4)  Where a body corporate is convicted of an offence under subsection (1) any director of the body corporate, or any manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity shall, if he consented to or connived at the commission of that offence, be guilty of that offence and be liable to be proceeded against and punished accordingly.

(5)  Without limiting the generality of subsection (4), a person shall, for the purposes of that subsection, be deemed to be a director of a body corporate if he occupies in relation thereto the position of a director, by whatever name called, or is a person in accordance with whose directions or instructions the directors of the company or any of them act:

Provided that a person shall not, by reason only that the directors of a body corporate act on advice given by him in a professional capacity, be taken, for the purposes of this subsection, to be a person in accordance with whose directions or instructions those directors act.

(6)  In this section marketable securities has the meaning ascribed to that expression in the Companies (New South Wales) Code.

CORRUPT REWARDS

186   Taking reward for helping to recover stolen property

Whosoever corruptly takes, or offers, or agrees, to take, any money, or reward, directly or indirectly, under pretence, or upon account, of helping any person to recover any property, taken, or obtained, or converted, or disposed of, in such manner as to be punishable by this Act, shall, unless he has used all due diligence to cause the offender to be brought to trial for the same, be liable to penal servitude for five years.

RECEIVERS

187   Term “stealing” in sections 188 and 189

For the purposes of sections 188 and 189:

Stealing includes the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question.

188   Receiving etc where principal guilty of felony

Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to felony, knowing the same to have been stolen, shall be guilty of felony, and may be indicted, either as an accessory after the fact, or for a substantive felony, and in the latter case whether the principal felon has been previously tried or not, or is amenable to justice or not, and in either case shall be liable to penal servitude for ten years.

189   Receiving etc where principal guilty of misdemeanour

Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof is a misdemeanour, knowing the same to have been stolen, shall be guilty of a misdemeanour, and whether the person guilty of the principal offence has been previously tried or not, or is amenable to justice or not, shall be liable to imprisonment for three years.

189A   Receiving etc goods stolen out of New South Wales

(1)  Whosoever, without lawful excuse, receives or disposes of, or attempts to dispose of, or has in his possession, any property stolen outside the State of New South Wales, knowing the same to have been stolen, and whether or not he took part in the stealing of the property, shall be liable to penal servitude for ten years.

(2)  For the purposes of this section property shall be deemed to have been stolen if it has been taken, extorted, obtained, embezzled, converted, or disposed of under such circumstances that if the act had been committed in the State of New South Wales the person committing it would have been guilty of an indictable offence according to the law for the time being of the State of New South Wales.

(3)  No person shall be liable to conviction under this section if the taking, extorting, obtaining, embezzling, converting, or disposing is not a criminal offence in the country in which the act is committed.

189B   Prosecution under section 188 or 189 where property stolen in course of transmission

(1)  Where in the trial of a person for the offence under section 188 or 189 of receiving, or disposing of, or attempting to dispose of, any property knowing it to have been stolen, it is proved that the property was stolen in the course of transmission between New South Wales and any other jurisdiction or between any other jurisdiction and New South Wales:

(a)  the person shall be liable to be convicted of the offence without proof that the stealing took place in New South Wales, and

(b)  for the purpose of determining whether or not the stealing amounts to a felony or a misdemeanour, the stealing shall be deemed to have taken place in New South Wales.

(2)  For the purposes of subsection (1) other jurisdiction means a State (other than New South Wales) or Territory of the Commonwealth.

190   Receiving etc cattle feloniously killed, or carcass etc

Whosoever:

receives any animal, feloniously killed, with intent to steal the carcass, or skin, or other part thereof, knowing the same to have been so killed, or

receives, or disposes of, or attempts to dispose of, any part of an animal so killed, or of an animal feloniously stolen, knowing it to have been so killed or so stolen,

shall be guilty of felony, and may be indicted and punished as if the animal had been stolen, and the accused had feloniously received the same.

191   Uncertainty as to sex or age not to entitle to acquittal

Where, on the trial of a person for an offence under section 190, it appears that the animal was of the species mentioned in the indictment, but it is uncertain on the evidence what was its sex or age, such person shall not be entitled to acquittal by reason only of such uncertainty.

192   Receiving material or tools intrusted for manufacture

Whosoever receives any goods, article, or material or any tools, or apparatus for manufacturing, or working up, the same, knowing the same to have been purloined, embezzled, or secreted, within the meaning of section 151, or that the person offering the same is fraudulently disposing thereof, shall be liable to imprisonment for four years.

193   Verdict where several persons are indicted for jointly receiving

Where, on the trial of two or more persons for jointly receiving property, it appears that one, or more, separately received such property, or any part thereof, the jury may convict such one or more of the said persons as is, or are, proved to have so received the same.

Chapter 2 Criminal destruction and damage

Division 1 Interpretation

194   Interpretation

(1)  In this Chapter, a reference to property does not include a reference to property that is not of a tangible nature.

(2)  In this Chapter, a reference to property includes a reference to wild creatures that have been tamed or are ordinarily kept in captivity and also includes any other wild creatures or their carcasses but only if they:

(a)  have been reduced into possession that has not been lost or abandoned, or

(b)  are in the course of being reduced into possession.

(3)  For the purposes of this Chapter, an act done by a person under a reasonable belief that the person had a right to do the act shall be taken not to have been done maliciously.

Division 2 Crimes against property generally

195   Maliciously destroying or damaging property

A person who maliciously destroys or damages property belonging to another or to that person and another is liable:

(a)  to penal servitude for 5 years, or

(b)  if the destruction or damage is caused by means of fire or explosives, to penal servitude for 10 years.

196   Maliciously destroying or damaging property with intent to injure a person

A person who maliciously destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable:

(a)  to penal servitude for 7 years, or

(b)  if the destruction or damage is caused by means of fire or explosives, to penal servitude for 14 years.

197   Dishonestly destroying or damaging property

A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable:

(a)  to penal servitude for 7 years, or

(b)  if the destruction or damage is caused by means of fire or explosives, to penal servitude for 14 years.

198   Maliciously destroying or damaging property with the intention of endangering life

A person who maliciously destroys or damages property, intending by the destruction or damage to endanger the life of another, is liable to penal servitude for 25 years.

199   Threatening to destroy or damage property

A person who, without lawful excuse, makes a threat to another, with the intention of causing that other to fear that the threat would be carried out:

(a)  to destroy or damage property belonging to that other or to a third person, or

(b)  to destroy or damage the first-mentioned person’s own property in a way which that person knows will or is likely to endanger the life of, or to cause bodily injury to, that other or a third person,

is liable to penal servitude for 5 years.

200   Possession, custody or control of an article with intent to destroy or damage property

A person who has possession, custody or control of an article with the intention that it should be used maliciously to destroy or damage property belonging to:

(a)  some other person, or

(b)  the first-mentioned person or the user, or both of them, and some other person,

is liable to penal servitude for 3 years.

Division 3 Crimes relating to particular kinds of property etc

201   Interfering with a mine

A person who maliciously:

(a)  causes water to run into a mine or any subterranean channel connected to it,

(b)  destroys, damages or obstructs any shaft, passage, pit, airway, waterway or drain of, or associated with, a mine,

(c)  destroys, damages or renders useless any equipment, building, road or bridge belonging to a mine, or

(d)  hinders the working of equipment belonging to a mine,

is liable to penal servitude for 7 years.

202   Causing damage etc to sea, river, canal and other works

A person who:

(a)  maliciously destroys, damages, removes or interferes with piles or other materials that form part of, or have been fixed or placed in position in order to secure:

(i)  a sea wall or other structure designed to prevent erosion by the sea,

(ii)  the bank or bed of, or a dam, weir or lock located on, a river or canal,

(iii)  a drain, aqueduct, marsh or reservoir, or

(iv)  a dock, quay, wharf, jetty or other harbour installation,

(b)  maliciously opens a floodgate or sluice that is located at or on a dam, weir, reservoir or watercourse, or

(c)  with the intention of obstructing or hindering the navigation of vessels or boats on a navigable river or canal:

(i)  interferes with or obstructs the flow of the river or canal,

(ii)  damages or interferes with the bank or bed of the river or canal, or

(d)  destroys, damages or interferes with any structure or equipment constructed or installed in connection with the use of the river or canal for the purposes of navigation,

is liable to penal servitude for 7 years.

203   False statement that a person or property is in danger

If:

(a)  a person:

(i)  makes to another person a statement that the first-mentioned person knows to be false or misleading, or

(ii)  sends to another person a document containing such a statement, and

(b)  the statement is likely to make that other person fear for the safety of a person (including the maker of the statement or the person to whom it is made) or for the safety of property, or both,

the first-mentioned person is liable to imprisonment for 5 years.

Part 4AA Offences relating to transport services

Division 1 Offences relating to aircraft, vessels etc

204   Destruction of, or damage to, an aircraft or vessel with intent or reckless indifference

Any person who:

(a)  with intent to cause the death of a person, or

(b)  with reckless indifference for the safety of the life of a person,

destroys or damages an aircraft or vessel is liable to penal servitude for 25 years.

205   Prejudicing the safe operation of an aircraft or vessel

A person who, whether on board the aircraft or vessel or not, does anything with the intention of prejudicing the safety of an aircraft or vessel is liable to penal servitude for 14 years.

206   Assault etc on member of crew of aircraft or vessel

A person who, while on board an aircraft or vessel, assaults or threatens with violence a member of the crew of the aircraft or vessel:

(a)  so as to interfere with the functions or duties performed by the crew member in connection with the safe operation of the aircraft or vessel, or

(b)  so as to diminish the ability of the crew member to perform those functions or duties,

is liable to penal servitude for 14 years.

207   Placing etc dangerous articles on board an aircraft or vessel

(1)  In this section:

dangerous article means:

(a)  a firearm, ammunition for a firearm, a weapon or an explosive, or

(b)  a substance or thing that, because of its nature or condition, could endanger the safety of an aircraft or vessel or persons on board an aircraft or vessel.

(2)  A person who:

(a)  places or carries on board an aircraft or vessel an article knowing that it is a dangerous article,

(b)  knowing that an article is a dangerous article, delivers the article to a person for the purpose of having the article placed or carried on board an aircraft or vessel, or

(c)  has possession of an article while on board an aircraft or vessel knowing that the article is a dangerous article,

      is liable to penal servitude for 7 years.

(3)  Subsection (2):

(a)  does not apply to or in relation to anything done with an article in relation to an aircraft or vessel with the consent of the owner or operator of the aircraft or vessel where that consent is given with a knowledge of the nature or condition of the article, and

(b)  does not apply to or in relation to the carrying or placing of a firearm or ammunition for a firearm on board an aircraft or vessel with permission given in accordance with regulations in force under the Air Navigation Act 1920 of the Commonwealth.

208   Threatening to destroy etc an aircraft, vessel or vehicle

(1)  In this section:

threat includes:

(a)  an expression of intention, or

(b)  the making of a statement from which an expression of intention could reasonably be inferred.

transport vehicle means:

(a)  a mechanically or electrically driven vehicle that is used or designed to be used for the purpose of conveying passengers or goods, or passengers and goods, or for the purpose of drawing a vehicle or vehicles of the kind referred to in paragraph (b), or

(b)  a vehicle not so driven that is directly or indirectly connected to and drawn by, or designed to be connected to and drawn by, a vehicle of the kind first referred to in paragraph (a),

      but does not include an aircraft or vessel.

(2)  A person who makes a demand of another person with a threat:

(a)  to destroy or damage, or endanger the safety of, an aircraft, vessel or transport vehicle, or

(b)  to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle,

      is liable to penal servitude for 14 years.

(3)  A person who makes a demand of another person together with a threat to do any of the things mentioned in subsection (2) (a) or (b) and, while that threat still has effect:

(a)  discharges a firearm,

(b)  causes an explosion, or

(c)  inflicts grievous bodily harm on, or wounds, a person,

      is liable to penal servitude for 25 years.

(4)  A person who makes a threat:

(a)  to destroy or damage, or endanger the safety of, an aircraft, vessel or transport vehicle, or

(b)  to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle,

      is liable to imprisonment for 5 years.

209   False information as to plan etc to prejudice the safety of an aircraft or vessel or persons on board an aircraft or vessel

A person who makes a statement or conveys information, knowing it to be false, to the effect, or from which it could reasonably be inferred, that there has been, is or is to be a plan, proposal, attempt, conspiracy or threat to:

(a)  take, or exercise control of, an aircraft or vessel by force,

(b)  destroy or damage, or endanger the safety of, an aircraft or vessel, or

(c)  kill, or inflict bodily injury on, persons in or on an aircraft or vessel,

is liable to imprisonment for 2 years.

210   Destroying, damaging etc an aid to navigation

A person who:

(a)  maliciously destroys, damages, removes, conceals or interferes with a mark, device or equipment used or designed to be used to assist the navigation of aircraft or vessels, or

(b)  does any act with the intention of causing any such destruction, damage, concealment or interference,

is liable to penal servitude for 7 years.

Division 2 Offences relating to railways etc

211   Criminal acts relating to railways

(1)  A person who:

(a)  maliciously does any act on or in connection with the operation of a railway, or

(b)  maliciously omits to do any act on or in connection with a railway that it is the person’s duty to do,

      with the intention of causing the death of, inflicting bodily injury on or endangering the safety of any person who is on the railway, or who is in or on any locomotive or other rolling stock on the railway, is liable to penal servitude for 25 years.

(2)  A person who:

(a)  maliciously does any act on or in connection with the operation of a railway, or

(b)  maliciously omits to do any act on or in connection with the operation of a railway that it is the person’s duty to do,

      with the intention of causing any locomotive or other rolling stock on the railway to be derailed, destroyed or damaged, is liable to penal servitude for 14 years.

212   Endangering passengers etc on railway

A person who, by an unlawful act or a negligent omission, endangers the safety of any person who is on, or who is being conveyed on, a railway is liable to imprisonment for 3 years.

213   Obstructing a railway

A person who:

(a)  intentionally and without lawful excuse, does an act, or omits to do an act, which causes the passage or operation of a locomotive or other rolling stock on a railway to be obstructed, or

(b)  assists a person to do or omit to do such an act, with the knowledge that the person’s intention to do or omit to do that act is without lawful excuse,

is liable to imprisonment for 2 years.

214   Obstructing a railway—verdict of misdemeanour

(1)  If, on the trial of a person for an offence under section 211, the jury is not satisfied that the person is guilty of the offence, but is satisfied that the person is guilty of an offence under section 212 or 213, it may acquit the person of the offence charged and instead find the person guilty of an offence under section 212 or 213.

(2)  If, in accordance with subsection (1), a jury finds a person guilty of an offence under section 212 or 213, the person is liable to be punished as provided by that section.

215–249   (Repealed)

Part 4A Corruptly receiving commissions and other corrupt practices

249A   Definitions

In this Part:

agent includes:

(a)  any person employed by, or acting for or on behalf of, any other person (who in this case is referred to in this Part as the person’s principal) in any capacity,

(b)  any person purporting to be, or intending to become, an agent of any other person (who in this case is referred to in this Part as the person’s principal), and

(c)  any person serving under the Crown (which in this case is referred to in this Part as the person’s principal), and

(d)  a police officer (and in this case a reference in this Part to the agent’s principal is a reference to the Crown).

benefit includes money and any contingent benefit.

249B   Corrupt commissions or rewards

(1)  If any agent corruptly receives or solicits (or corruptly agrees to receive or solicit) from another person for the agent or for anyone else any benefit:

(a)  as an inducement or reward for or otherwise on account of:

(i)  doing or not doing something, or having done or not having done something, or

(ii)  showing or not showing, or having shown or not having shown, favour or disfavour to any person,

      in relation to the affairs or business of the agent’s principal, or

(b)  the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal,

      the agent is liable to imprisonment for 7 years.

(2)  If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit:

(a)  as an inducement or reward for or otherwise on account of the agent’s:

(i)  doing or not doing something, or having done or not having done something, or

(ii)  showing or not showing, or having shown or not having shown, favour or disfavour to any person,

      in relation to the affairs or business of the agent’s principal, or

(b)  the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent’s principal,

      the firstmentioned person is liable to imprisonment for 7 years.

(3)  For the purposes of subsection (1), where a benefit is received or solicited by anyone with the consent or at the request of an agent, the agent shall be deemed to have received or solicited the benefit.

249C   Misleading documents or statements used or made by agents

(1)  Any agent who uses, or gives to the agent’s principal, a document which contains anything that is false or misleading in any material respect, with intent to defraud the agent’s principal, is liable to imprisonment for 7 years.

(2)  Any agent who makes a statement to the agent’s principal which is false or misleading in any material respect, with intent to defraud the principal, is liable to imprisonment for 7 years.

249D   Corrupt inducements for advice

(1)  If a person corruptly gives a benefit to another person for giving advice to a third person, being advice which the person giving the benefit intends will influence the third person:

(a)  to enter into a contract with the person who gives the benefit, or

(b)  to appoint the person who gives the benefit to any office,

      and, at the time the benefit is given, the person who gives the benefit intends the giving of the benefit not be made known to the person advised, the person who gives the benefit is liable to imprisonment for 7 years.

(2)  If a person corruptly receives a benefit for giving advice to another person, being advice which is likely to influence the other person:

(a)  to enter into a contract with the person who gave the benefit, or

(b)  to appoint the person who gave the benefit to any office,

      and, at the time the benefit is received, the person who receives the benefit intends the giving of the benefit not be made known to the person to be advised, the person who receives the benefit is liable to imprisonment for 7 years.

(3)  For the purposes of subsections (1) and (2), where a benefit is given or received by anyone with the consent or at the request of another person, the other person shall be deemed to have given or received the benefit.

(4)  If any person corruptly offers or solicits a benefit for the giving of advice by one person to another:

(a)  intending that the advice will influence the person advised:

(i)  to enter into a contract with anyone, or

(ii)  to appoint anyone to any office, and

(b)  intending that the giving or receipt of the benefit not be made known to the person advised,

      the firstmentioned person is liable to imprisonment for 7 years.

(5)  In this section:

(a)  a reference to the giving of advice includes a reference to the providing of information orally or in writing,

(b)  a reference to entering into a contract includes a reference to offering to enter into a contract, and

(c)  a reference to the appointment of a person includes a reference to:

(i)  joining in the appointment of the person, and

(ii)  voting for or assisting in the election or appointment of the person.

249E   Corrupt benefits for trustees and others

(1)  In this section, a reference to a person entrusted with property is a reference to:

(a)  a trustee of the property,

(b)  an executor or administrator appointed for the purpose of dealing with the property,

(c)  a person who, because of a power of attorney or a power of appointment, has authority over the property, and

(d)  a person or a member of a committee managing or administering the property (or appointed or employed to manage or administer the property) under the Mental Health Act 1958 or Protected Estates Act 1983.

(2)  Any person who offers or gives a benefit to a person entrusted with property, and any person entrusted with property who receives or solicits a benefit for anyone, without the consent:

(a)  of each person beneficially entitled to the property, or

(b)  of the Supreme Court,

      as an inducement or reward for the appointment of any person to be a person entrusted with the property, are each liable to imprisonment for 7 years.

(3)  In this section, a reference to the appointment of a person includes a reference to:

(a)  joining in the appointment of the person, and

(b)  assisting in the appointment of the person.

(4)  Proceedings for an offence under this section shall not be commenced without the consent of the Attorney General.

(5)  A consent to commence any such proceedings purporting to have been signed by the Attorney General is evidence of that consent without proof of the signature of the Attorney General.

249F   Aiding, abetting etc

(1)  A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Part is guilty of an offence and is liable to imprisonment for 7 years.

(2)  A person who, in New South Wales, aids, abets, counsels or procures the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Part, is guilty of an offence and is liable to imprisonment for 7 years.

249G   Repayment of value of gift etc

(1)  If a person is convicted of an offence under this Part, the court may (as well as imposing a penalty for the offence) order the person to pay to such other person as the court directs the whole or part of the amount or the value, assessed by the court, of any benefit received or given by the person.

(2)  Any money payable to a person under this section may be recovered in a court of competent jurisdiction as a debt due to the person.

249H   Disqualification for office

If a person is convicted of an offence under this Part, the person is disqualified from holding civic office for the purposes of the Local Government Act 1993, for the period of 7 years from the conviction or such lesser period as the court may order.

249I   Dismissal of trivial case

If, in any proceedings for an offence under this Part, it appears to the court that the offence is of a trivial or merely technical nature, the court may in its discretion dismiss the case.

249J   Custom not a defence

In any proceedings for an offence under this Part, it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling.

Part 5 Forgery and false instrument offences

Chapter 1 Forgery

Declaratory and general

250   Forging and uttering defined

For the purposes of this Act:

Forging means the counterfeiting, or altering in any particular, by whatsoever means effected, with intent to defraud, of an instrument, or document, or of some signature, or other matter, or thing, or of any attestation, or signature of a witness, whether by law required or not to any instrument, document, or matter, the forging of which is punishable under this Act.

Utter, or uttering, wherever used herein with respect to any forged instrument, document, signature, matter, or thing, or any instrument, document, or matter with a forged attestation or signature of a witness thereto, means that the person uttered, offered, disposed of, or put off, the same with intent to defraud, knowing it to be forged.

251   Uttering to be offence of same degree and subject to same punishment as forging

The uttering of any forged instrument, document, signature, matter, or thing, or of any instrument, document, or matter with a forged attestation or signature of a witness thereto, whether in any such case the same was made, or purports to have been made, in or out of New South Wales, shall, wherever the forging of the same is punishable under this Act, be an offence of the same degree, and punishable in the same manner as such forgery.

252   (Repealed)

Forgery, &c, of public seals

253   Royal or public seals

Whosoever:

forges any of Her Majesty’s seals, or the seal of New South Wales, or of any British Colony, or the impression of any such seal, or

utters any instrument, having thereon, or affixed thereto, the impression of any such forged seal, or any forged impression made, or apparently intended, to resemble the impression of any such seal, or

forges any instrument having any such impression thereon, or affixed thereto,

shall be liable to penal servitude for fourteen years.

254   (Repealed)

Forgery of Acts, Proclamations, &c

255   Acts, proclamations etc

Whosoever:

prints any copy of any Act, or of any proclamation or commission issued by the Governor, which copy falsely purports to have been printed by the Government Printer, or

tenders in evidence any such copy knowing the same was not printed by the Government Printer,

shall be liable to penal servitude for fourteen years.

256–259   (Repealed)

Forgery of India bonds, Exchequer bills, &c

260   East India bonds, Exchequer bills, or debentures etc

Whosoever forges, or utters, any East India bond, or any bond, debenture, or security made under the authority of any Act relating to the East Indies, or any indorsement on, or assignment of, any such bond, debenture, or security, or any Exchequer bill, bond, or debenture, or any indorsement on, or assignment of, any such bill, bond, or debenture, or any Treasury bill, or debenture of the Government of New South Wales, or receipt, or certificate for interest accruing thereon, shall be liable to penal servitude for fourteen years.

261–264   (Repealed)

Forgery, &c, of, or engraving plate, &c, for, bank notes, &c

265   Forging etc a bank note etc

Whosoever:

forges, or utters, any note, or bill of exchange, of any company or person carrying on the business of banking, whether in New South Wales or elsewhere, commonly called a bank note, bank bill of exchange, or bank post bill, or any indorsement on, or assignment of, any such note or bill, or

for any unlawful purpose, or without lawful authority or excuse, purchases or receives from any person, or has in his possession, any such forged bank note, bank bill of exchange, or bank post bill, knowing the same to be forged,

shall be liable to penal servitude for fourteen years.

266   Engraving or having any plate etc for making bank notes or paper

Whosoever, for any unlawful purpose, or without lawful authority or excuse,

engraves, or makes, upon any material, any words or writing purporting to be a bank note, bank bill of exchange, or bank post bill, of any company or person carrying on the business of banking in New South Wales, or elsewhere, or to be part of any such instrument, or any name, word, or character, resembling or apparently intended to resemble any subscription to any such instrument, issued by any such company or person, or

uses any material, or implement, or device, for making or printing any such instrument, or any part thereof, or

knowingly has in his possession any such material, or any such implement or device, or

knowingly offers, utters, disposes of, or puts off, or has in his possession, any paper, upon which any such instrument, or any part thereof, or any name, word, or character, resembling or apparently intended to resemble any such subscription as aforesaid, is made or printed,

shall be liable to penal servitude for fourteen years.

267   Engraving etc any part of a bank note etc

Whosoever, for any unlawful purpose, or without lawful authority or excuse,

engraves, or makes upon any material any word, number, figure, device, character, or ornament, the impression taken from which resembles, or apparently is intended to resemble, any part of a bank note, bank bill of exchange, or bank post bill, of any company or person carrying on the business of banking in New South Wales or elsewhere, or

uses, or knowingly has in his possession, any such material, or instrument, or device, for impressing upon paper or other material any word, number, figure, character, or ornament, which resembles or apparently is intended to resemble any part of any such note, or bill, or

knowingly offers, utters, disposes of, or puts off, or has in his possession, any paper or other material, upon which there is an impression of any such matter as aforesaid,

shall be liable to penal servitude for fourteen years.

268   Instruments in blank

Every instrument in blank, which in a complete state would be a bank note, bank bill of exchange, or bank post bill, shall be within sections 266 and 267.

269   Having moulds for paper with the name of any banker

Whosoever, for any unlawful purpose, or without lawful authority or excuse,

makes or uses, any frame, mould, or instrument for the manufacture of paper, with the name or firm of any company or person carrying on the business of banking in New South Wales or elsewhere appearing visible in the substance of the paper, or knowingly has in his possession any such frame, mould, or instrument, or

makes, uses, sells, exposes for sale, utters, or disposes of, or knowingly has in his possession, any paper, in the substance of which the name or firm of any such company or person appears visible, or by any art or contrivance causes the name or firm of any such company or person to appear visible in the substance of the paper upon which the same is written or printed,

shall be liable to penal servitude for fourteen years.

270   Engraving plates for foreign bills or notes

Whosoever, for any unlawful purpose, or without lawful authority or excuse,

engraves, or makes upon any material, any bill of exchange, promissory-note, undertaking, or order for payment of money, or any part of any such instrument, in whatsoever language the same is expressed, and whether the same is under seal or not, or intended to be under seal, purporting to be the bill, note, undertaking, or order, or part of the bill, note, undertaking, or order of a foreign prince or State, or any body corporate, or body of the like nature, or person or company of persons, in any country not under the dominion of Her Majesty, or

uses, or knowingly has in his possession any material upon which any such foreign bill, note, undertaking, or order, or any part thereof, is engraved, or made, or

knowingly offers, utters, disposes of, or puts off, or has in his possession, any paper upon which any part of any such instrument is made or printed,

shall be liable to penal servitude for fourteen years.

Forgery, &c, of wills, &c

271   Forging wills

Whosoever forges, or utters, any will, testament, codicil, or testamentary instrument shall be liable to penal servitude for fourteen years.

272–276   (Repealed)

Forgery of signature of Judge

277   (Repealed)

278   Forging signature of Supreme Court Judge to decree etc or tendering same in evidence with forged signature

Whosoever:

forges the signature of any Judge of the Supreme Court purporting to be attached or appended to any decree, order, certificate, or other official, or judicial document, or

tenders in evidence any such decree, order, certificate, or document, as aforesaid, with a false or counterfeit signature of any such Judge thereto, knowing the same to be false or counterfeit,

shall be liable to penal servitude for fourteen years.

279–283   (Repealed)

Forgery, &c, of instruments of evidence

284   (Repealed)

285   Forgery of signature to copies etc admissible in evidence of decrees etc

Whosoever, where any copy of any judgment, decree, rule, or order filed or recorded in the Supreme Court at Sydney, or formerly filed or recorded in the Supreme Court of New South Wales for the district of Port Phillip, is admissible in evidence when certified under the hand of the proper officer of such Court,

forges the signature of such officer to any such copy, or

tenders in evidence any such copy with a false or counterfeit signature thereto, knowing the same to be false,

shall be liable to penal servitude for fourteen years.

286–288   (Repealed)

289   Forgery of seal etc on public documents etc and copies admissible in evidence

Whosoever, where any certificate, or official, or public document, or any document or proceeding of any corporation, or joint stock or other company, now or hereafter to be established, or any certified copy of any document, or by-law, or entry in any register or other book, or of any other proceeding, is admissible in evidence under any Act, now or hereafter in force, when purporting to be sealed or stamped and signed as directed by the Act under which the same is so admissible,

forges the seal, stamp, or signature appended to any such certificate, or document, or proceeding, or to any such certified copy, as aforesaid, or

tenders in evidence any such certificate, or document, or proceeding, or any such certified copy, as aforesaid, with a false or counterfeit seal, stamp, or signature thereto, knowing the same to be false or counterfeit,

shall be liable to penal servitude for fourteen years.

290   (Repealed)

291   Forging etc certificate issued by officer outside New South Wales

Whosoever, where a certificate of the birth, marriage, or death, of any person in any part of the British dominions other than New South Wales, is admissible in evidence when purporting to be issued by the officer authorised by the law in that behalf of such part of the said dominions,

forges, or utters any such certificate, or

tenders, or causes to be tendered, in evidence any such certificate, knowing the same to be forged,

shall be liable to penal servitude for fourteen years.

292–295   (Repealed)

Falsifying entries of births, deaths, &c

296   Falsifying entries of births etc or giving false certificates

Whosoever:

unlawfully destroys, defaces, or injures, any register of births, marriages, deaths, or burials, now or hereafter by law required to be kept, or any certified copy of any such register, or

forges, or fraudulently obliterates, or alters in any such register or copy, any entry relating to any birth, marriage, death, or burial, or fraudulently inserts in any such register or copy any false entry, or matter relating to any such matter, or

fraudulently gives any false certificate relating to any birth, marriage, death, or burial, or certifies any writing to be a copy, or extract from, any such register, knowing such writing or the entry to which it relates to be false, or

forges, or utters, the signature, or any seal, or stamp, of or belonging to, or used by, the Registrar of Births, Deaths and Marriages, or

causes, or knowingly permits, the doing of any such act as aforesaid,

shall be liable to penal servitude for fourteen years.

297   Making false entries in copies sent to registrar

Whosoever:

wilfully inserts, in any copy of any register required by law to be transmitted to a registrar, any false entry or matter relating to any birth, marriage, or burial, or

forges, or utters, any copy of any such register, or wilfully signs, or verifies, any copy of any such register, which copy is false in any part, knowing the same to be false, or

forges, or unlawfully destroys, defaces, or injures, or for any fraudulent purpose takes from its place of deposit, or conceals, any such register or copy, or

causes, or knowingly permits, the doing of any such act as aforesaid,

shall be liable to penal servitude for fourteen years.

Obtaining or demanding property on forged instruments

298   Demanding property on forged instruments

Whosoever, with intent to defraud, obtains, or demands, or causes to be delivered, or paid to any person, or endeavours to obtain, or cause to be delivered, or paid to any person, any property, upon or by virtue of any forged instrument, knowing the same to be forged, or upon or by virtue of any probate, or letters of administration, knowing the will, codicil, or testamentary writing, on which the same was, or were, obtained, to have been forged, or such probate, or letters, to have been obtained by any false oath or affirmation, shall be liable to penal servitude for fourteen years.

Chapter 2 False instruments

299   Interpretation

(1)  In this Chapter:

instrument means:

(a)  any document, whether of a formal or informal character, or

(b)  a card by means of which property or credit can be obtained, or

(c)  a disc, tape, sound track or other device on or in which information is recorded or stored by mechanical, electronic or other means.

(2)  For the purposes of this Chapter, an instrument is false if it purports:

(a)  to have been made in the form in which it is made by a person who did not in fact 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 in fact 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 in fact 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 in fact authorise its making in those terms, or

(e)  to have been altered in any respect by a person who did not in fact alter it in that respect, or

(f)  to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect, or

(g)  to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered, or

(h)  to have been made or altered by an existing person who did not in fact exist.

300   Making or using false instruments

(1)  A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person:

(a)  to accept the instrument as genuine, and

(b)  because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

      is liable to penal servitude for 10 years.

(2)  A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person:

(a)  to accept the instrument as genuine, and

(b)  because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

      is liable to penal servitude for 10 years.

301   Making or using copies of false instruments

(1)  A person who makes a copy of an instrument which is, and which the person knows to be, a false instrument, with the intention that he or she, or another person, will use it to induce another person:

(a)  to accept the copy as a copy of a genuine instrument, and

(b)  because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

      is liable to penal servitude for 10 years.

(2)  A person who uses a copy of an instrument which is, and which he or she knows to be a false instrument, with the intention of inducing another person:

(a)  to accept the copy as a copy of a genuine instrument, and

(b)  because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

      is liable to penal servitude for 10 years.

302   Custody of false instruments etc

A person who has in his or her custody, or under his or her control, an instrument which is false, and which he or she knows to be false, with the intention that the person or another person will use it to induce another person:

(a)  to accept the instrument as genuine, and

(b)  because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

is liable to penal servitude for 10 years.

302A   Making or possession of implements for making false instruments

A person who makes, or who has in his or her custody or under his or her control, a machine or implement, or paper or other material, that is, and that the person knows to be, specially designed or adapted for the making of a false instrument, with the intention that he or she or another person will use it to induce another person:

(a)  to accept the instrument as genuine, and

(b)  because of that acceptance, to do or not do some act to that other person’s or to another person’s prejudice,

is liable to penal servitude for 10 years.

303   Response of machine to false instrument etc

(1)  In this Chapter, a reference to inducing a person to accept:

(a)  a false instrument as genuine, or

(b)  a copy of a false instrument as a copy of a genuine instrument,

      includes a reference to causing a machine to respond to the instrument or copy as if it were a genuine instrument or a copy of a genuine instrument.

(2)  If:

(a)  a machine responds to an instrument or copy in that way, and

(b)  the act or omission intended to be caused by the response is an act or omission that would be (if it were an act or omission of a person) to a person’s prejudice,

      the act or omission intended to be caused by the machine’s so responding shall, for the purposes of this Chapter, be taken to be an act or omission to a person’s prejudice.

304   When a false instrument is made

For the purposes of this Chapter, a person is to be treated as making a false instrument if the person alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration).

305   When an act or omission is prejudicial

For the purposes of this Chapter, an act or omission is to a person’s prejudice if, and only if, it is one that (if it occurs):

(a)  will result:

(i)  in the person’s temporary or permanent loss of property, or

(ii)  in the person’s being deprived of an opportunity to earn remuneration or greater remuneration, or

(iii)  in the person’s being deprived of an opportunity to obtain a financial advantage otherwise than by way of remuneration, or

(b)  will result in any person being given an opportunity:

(i)  to earn remuneration or greater remuneration from the first-mentioned person, or

(ii)  to obtain a financial advantage from the first-mentioned person otherwise than by way of remuneration, or

(c)  will be the result of the person’s having accepted a false instrument as genuine, or a copy of a false instrument as a copy of a genuine one, in connection with the person’s performance of a duty.

306   Intention to induce may be general

In proceedings for an offence against this Chapter, if it is necessary to allege an intent to induce a person to accept:

(a)  a false instrument as genuine, or

(b)  a copy of a false instrument as a copy of a genuine one,

it is not necessary to allege that the accused intended so to induce a particular person.

307   Abolition of common law offence

The offence of forgery at common law is abolished for all purposes not relating to offences committed before the commencement of this Chapter (as inserted by the Crimes (Computers and Forgery) Amendment Act 1989).

Part 6 Offences relating to computers

308   Definitions

In this Part:

(a)  a reference to data includes a reference to information, and

(b)  a reference to a program or data includes a reference to part of the program or data, and

(c)  a reference to data stored in a computer includes a reference to data entered or copied into the computer.

309   Unlawful access to data in computer

(1)  A person who, without authority or lawful excuse, intentionally obtains access to a program or data stored in a computer is liable, on conviction before two justices, to imprisonment for 6 months, or to a fine of 50 penalty units, or both.

(2)  A person who, with intent:

(a)  to defraud any person, or

(b)  to dishonestly obtain for himself or herself or another person any financial advantage of any kind, or

(c)  to dishonestly cause loss or injury to any person,

      obtains access to a program or data stored in a computer is liable to imprisonment for 2 years, or to a fine of 500 penalty units, or both.

(3)  A person who, without authority or lawful excuse, intentionally obtains access to a program or data stored in a computer, being a program or data that the person knows or ought reasonably to know relates to:

(a)  confidential government information in relation to security, defence or inter-governmental relations, or

(b)  the existence or identity of any confidential source of information in relation to the enforcement or administration of the law, or

(c)  the enforcement or administration of the criminal law, or

(d)  the maintenance or enforcement of any lawful method or procedure for protecting public safety, or

(e)  the personal affairs of any person (whether living or deceased), or

(f)  trade secrets, or

(g)  records of a financial institution, or

(h)  information (other than trade secrets) that has a commercial value to any person that could be destroyed or diminished if disclosed,

      is liable to imprisonment for 2 years, or to a fine of 500 penalty units, or both.

(4)  A person who:

(a)  without authority or lawful excuse, has intentionally obtained access to a program or data stored in a computer, and

(b)  after examining part of that program or data, knows or ought reasonably to know that the part of the program or data examined relates wholly or partly to any of the matters referred to in subsection (3), and

(c)  continues to examine that program or data,

      is liable to imprisonment for 2 years, or to a fine of 500 penalty units, or both.

310   Damaging data in computer

A person who intentionally and without authority or lawful excuse:

(a)  destroys, erases or alters data stored in or inserts data into a computer, or

(b)  interferes with, or interrupts or obstructs the lawful use of a computer,

is liable to penal servitude for 10 years, or to a fine of 1,000 penalty units, or both.

Part 6A

310A (Repealed)

Part 7 Public justice offences

Chapter 1 Definitions

311   Definitions

(1)  In this Part:

benefit means any benefit or advantage whether or not in money or money’s worth.

judicial officer means a person who is, or who alone or with others constitutes, a judicial tribunal and includes a coroner.

judicial proceeding means a proceeding in or before a judicial tribunal in which evidence may be taken on oath.

judicial tribunal means a person (including a coroner and an arbitrator), court or body authorised by law, or by consent of parties, to conduct a hearing for the purpose of the determination of any matter or thing and includes a person, court or body authorised to conduct a committal proceeding.

public justice official means a person who is a public officer employed in any capacity (other than as a judicial officer) for the investigation, detection or prosecution of offenders.

serious offence means an offence punishable by imprisonment or penal servitude for 5 years or more or for life.

(2)  In this Part, a reference to the making of a statement on oath includes a reference to the verification of a statement on oath.

312   Meaning of “pervert the course of justice”

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

313   Knowledge that offence is a serious offence is unnecessary

If it is an element of an offence under this Part that an offence is a serious offence, it is not necessary for the prosecution to establish that the accused knew that the offence was a serious offence.

Chapter 2 Interference with the administration of justice

314   False accusations etc

A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to penal servitude for 7 years.

315   Hindering investigation etc

(1)  A person who does anything intending in any way to hinder:

(a)  the investigation of a serious offence committed by another person, or

(b)  the discovery of evidence concerning a serious offence committed by another person, or

(c)  the apprehension of another person who has committed a serious offence,

      is liable to penal servitude for 7 years.

(2)  For the purposes of subsection (1), a person is to be considered to have committed a serious offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence.

(3)  It is not an offence against this section merely to refuse or fail to divulge information or produce evidence.

316   Concealing serious offence

(1)  If a person has committed a serious offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

(2)  A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years.

(3)  It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury.

317   Tampering etc with evidence

A person who, with intent to mislead any judicial tribunal in any judicial proceeding:

(a)  suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or

(b)  fabricates false evidence (other than by perjury or suborning perjury), or

(c)  knowingly makes use of fabricated false evidence,

is liable to penal servitude for 10 years.

318   Making or using false official instrument to pervert the course of justice

(1)  In this section:

official instrument means an instrument of a kind that is made or issued by a person in his or her capacity as a public officer or by a judicial tribunal.

(2)  A person who makes a false official instrument, or who makes a copy of an instrument which the person knows to be a false official instrument, with the intention that:

(a)  he or she or another person will use it to induce another person to accept the instrument as genuine or to accept the copy as a copy of a genuine official instrument, and

(b)  that acceptance will pervert the course of justice,

      is liable to penal servitude for 14 years.

(3)  A person who uses an instrument which the person knows to be a false official instrument, or who uses a copy of an instrument which the person knows to be a false official instrument, with the intention:

(a)  of inducing another person to accept the instrument as genuine or to accept the copy as a copy of a genuine official instrument, and

(b)  of thereby perverting the course of justice,

      is liable to penal servitude for 14 years.

(4)  Chapter 2 of Part 5 applies to the interpretation of this section as if this section formed part of that Chapter.

319   General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to penal servitude for 14 years.

Chapter 3 Interference with judicial officers, witnesses, jurors etc

320   Extended meaning of “giving evidence”

In this Chapter, a reference to the giving of evidence includes a reference to the production of anything to be used as evidence.

321   Corruption of witnesses and jurors

(1)  A person who confers or procures or offers to confer or procure or attempt to procure any benefit on or for any person:

(a)  intending to influence any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or

(b)  intending to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding or to not attend as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, and intending to pervert the course of justice,

      is liable to penal servitude for 10 years.

(2)  A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person:

(a)  in consideration for any agreement or undertaking that any person will as a witness in any judicial proceeding give false evidence or withhold true evidence or not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or

(b)  on account of anything to be done or omitted to be done by him or her or another person as a juror in any judicial proceeding, or on account of his or her or another person’s not attending as a juror in any judicial proceeding, intending to pervert the course of justice,

      is liable to penal servitude for 10 years.

322   Threatening or intimidating judges, witnesses, jurors etc

A person who threatens to do or cause, or who does or causes, any injury or detriment to any person:

(a)  intending to influence a person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena, or

(b)  intending to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding or to not attend as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not, or

(c)  intending to influence any person in the person’s conduct as a judicial officer, or

(d)  intending to influence any person in the person’s conduct as a public justice official in or in connection with any judicial proceeding,

is liable to penal servitude for 10 years.

323   Influencing witnesses and jurors

A person who does any act:

(a)  intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce any thing in evidence pursuant to a summons or subpoena, or

(b)  intending, other than by the production of evidence and argument in open court, to influence any person (whether or not a particular person) in the person’s conduct as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not,

is liable to imprisonment for 7 years.

324   Increased penalty if serious offence involved

A person who commits an offence against section 321, 322 or 323 (offences concerning interference with witnesses, jurors, judicial officers and public justice officials) intending to procure the conviction or acquittal of any person of any serious offence is liable to penal servitude for 14 years.

325   Preventing, obstructing or dissuading witness or juror from attending etc

(1)  A person who without lawful excuse wilfully prevents, obstructs or dissuades a person called as a witness in any judicial proceeding from attending as a witness or from producing anything in evidence pursuant to a summons or subpoena is liable to imprisonment for 5 years.

(1A)  A person who without lawful excuse wilfully prevents, obstructs or dissuades another person who the person believes may be called as a witness in any judicial proceeding from attending the proceeding is liable to imprisonment for 5 years.

(2)  A person who without lawful excuse wilfully prevents, obstructs or dissuades a person summoned as a juror in any judicial proceeding from attending as a juror is liable to imprisonment for 5 years.

326   Reprisals against judges, witnesses, jurors etc

(1)  A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account of anything lawfully done by a person:

(a)  as a witness or juror in any judicial proceeding, or

(b)  as a judicial officer, or

(c)  as a public justice official in or in connection with any judicial proceeding,

      is liable to penal servitude for 10 years.

(2)  A person who threatens to do or cause, or who does or causes, any injury or detriment to another person because the person believes the other person will or may be or may have been called as a witness, or will or may serve or may have served as a juror, in any judicial proceeding is liable to penal servitude for 10 years.

(3)  For the purposes of this section, it is immaterial whether the accused acted wholly or partly for a reason specified in subsection (1) or (2).

Chapter 4 Perjury, false statements etc

327   Offence of perjury

(1)  Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to penal servitude for 10 years.

(2)  A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it.

(3)  The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement.

(4)  The question of whether any matter is material to a proceeding is a question of law.

328   Perjury with intent to procure conviction or acquittal

Any person who commits perjury intending to procure the conviction or acquittal of any person of any serious offence is liable to penal servitude for 14 years.

329   Conviction for false swearing on indictment for perjury

If on the trial of a person for perjury the jury is not satisfied that the accused is guilty of perjury but is satisfied on the evidence that the accused is guilty of an offence under section 330 (False statement on oath not amounting to perjury) 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.

330   False statement on oath not amounting to perjury

A person who makes on oath any false statement knowing the statement to be false or not believing it to be true, if it is not perjury, is liable to imprisonment for 5 years.

331   Contradictory statements on oath

If on the trial of a person for perjury or for an offence under section 330 (False statement on oath not amounting to perjury):

(a)  the jury is satisfied that the accused has made 2 statements on oath and one is irreconcilably in conflict with the other, and

(b)  the jury is satisfied that one of the statements was made by the accused knowing it was false or not believing it was true but the jury cannot say which statement was so made,

the jury may make a special finding to that effect and find the accused guilty of perjury or of an offence under section 330, as appropriate, and the accused is liable to punishment accordingly.

332   Certain technical defects provided for

If on the trial of a person for perjury or for an offence under section 330 (False statement on oath not amounting to perjury):

(a)  any affidavit, deposition, examination or declaration offered in evidence is wrongly entitled or otherwise informal or defective, or

(b)  the jurat to any such instrument is informal or defective,

the accused is not entitled to an acquittal because of the omission, defect or informality but the instrument (if otherwise admissible) may be given in evidence and used for all purposes of the trial.

333   Subornation of perjury

(1)  A person who procures, persuades, induces or otherwise causes a person to give false testimony the giving of which is perjury is guilty of subornation of perjury and liable to imprisonment for 7 years.

(2)  A person who commits subornation of perjury intending to procure the conviction or acquittal of any person of any serious offence is liable to penal servitude for 14 years.

334   General provisions applicable to perjury and false statement offences

It is immaterial for the purposes of this Chapter:

(a)  whether a statement on oath is given orally or in writing, or

(b)  which forms and ceremonies are used in administering the oath (or otherwise binding the person giving the testimony to speak the truth) so long as the person assents to the forms and ceremonies actually used, or

(c)  whether (in the case of a statement made in a judicial proceeding) the judicial tribunal concerned is properly constituted or held in the proper place or not, so long as it actually acts as a judicial tribunal in the proceeding in which the statement is made, or

(d)  whether the person who makes the statement is a competent witness or not, or whether the statement is admissible in the proceeding or not, or

(e)  in the case of judicial proceedings in an arbitration, whether the law governing the arbitration agreement or the proceedings, or any other relevant law, is or is not the law of New South Wales.

335   False statements in evidence on commission

If a person, in giving any testimony (either orally or in writing) otherwise than on oath, when required to do so by an order under section 33 (Power of the Supreme Court to give effect to application for assistance) of the Evidence on Commission Act 1995, makes any statement that is false in a material particular, knowing the statement to be false or not believing it to be true, is liable to imprisonment for 5 years.

336   False entry on public register

(1)  A person who for an improper purpose makes a statement for the making of an entry in any register kept by a public officer for a public purpose, knowing the statement to be false or misleading in a material particular, is liable to imprisonment for 5 years.

(2)  A person who for an improper purpose makes an entry in any register kept by a public officer for a public purpose, knowing the entry to be false or misleading in a material particular, is liable to imprisonment for 5 years.

337   False instruments issued by public officers

A public officer who, being authorised or required to issue an instrument whereby any person may be prejudicially affected, issues the instrument for an improper purpose knowing it to be false in a material particular is liable to imprisonment for 5 years.

338   Restrictions on prosecutions for perjury

(1)  A person is not to be prosecuted for perjury except:

(a)  by the Director of Public Prosecutions, or

(b)  at the direction of the Attorney General, or

(c)  by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.

(2)  If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1) (c), the prosecution may be instituted with leave of the Supreme Court.

(3)  A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions.

339   Application of Chapter to perjury under other Acts

Any false oath declared by any Act to be perjury or made punishable as perjury by any Act is to be considered to be perjury for the purposes of this Act.

Chapter 5 Miscellaneous

340   Extent of abolition of offences

The offences at common law abolished by this Chapter are abolished for all purposes not relating to offences committed before the commencement of this Part (as substituted by the Crimes (Public Justice) Amendment Act 1990).

341   Certain common law offences abolished

The following offences at common law are abolished:

•  the offence of perverting the course of justice,

•  the offence of attempting or conspiring to pervert the course of justice,

•  the offence of falsely accusing a person of a crime or of procuring a person to falsely accuse a person of a crime,

•  the offence of concealing evidence so that a person is falsely accused of a crime,

•  the offence of attempting to pervert the course of justice by assisting a person to avoid arrest,

•  the offence of persuading a person to make a false statement to police to mislead them in their investigation,

•  the offence of procuring a person to make a false accusation,

•  the offence of misprision of felony,

•  the offence of compounding a felony,

•  the offence of dissuading, intimidating or preventing, or attempting to dissuade, intimidate or prevent, a person who is bound to give evidence in a criminal matter from doing so,

•  the offence of using threats or persuasion to witnesses to induce them not to appear or give evidence in courts of justice,

•  the offence of perjury,

•  the offence of embracery (attempting to corrupt, influence or instruct a jury or to induce a jury to favour one side more than the other),

•  personating a juror.

342   Certain conspiracy offences not affected

The abolition of the common law offence of conspiring to pervert the course of justice does not prevent a prosecution for an offence of conspiring to commit an offence against this Part.

343   Certain common law offences not abolished

To remove any doubt, it is declared that the following offences at common law are not abolished by this Chapter:

(a)  the offence of escaping from lawful custody,

(b)  the offence of assisting a person to escape from lawful custody,

(c)  the offence of refusing to assist a peace officer in the execution of his or her duty in preventing a breach of the peace.

343A   Saving of other punishments

Nothing in this Part prevents or affects any other punishment, or any forfeiture, provided under any Act.

Part 8

344 (Repealed)

Part 8A Attempts

344A   Attempts

(1)  Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.

(2)  Where a person is convicted of an attempt to commit an offence and the offence concerned is a felony he shall be deemed to have been convicted of a felony.

Part 9 Abettors and accessories

345   Principals in the second degree—how tried and punished

Every principal in the second degree in any felony, whether the same is a felony at Common Law, or by this or any other statute, now existing or hereafter to be passed, shall be liable to the same punishment as the principal in the first degree.

346   Accessories before the fact—how tried and punished

Every accessory before the fact to any such felony may be indicted, convicted, and sentenced, either before or after the trial of the principal felon, or together with such felon, or indicted, convicted, and sentenced, as a principal in the felony, and shall be liable in either case to the same punishment as the principal felon, whether the principal felon has been tried or not, or is amenable to justice or not.

347   Accessories after the fact—how tried and punished

Every accessory after the fact to any such felony may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal felon, whether such felon has been previously tried or not, or is amenable to justice or not.

348   Punishment of accessories after the fact to treason

Every accessory after the fact to any felony under Part 2, relating to treason-felony, shall be liable to imprisonment for two years.

349   Punishment of accessories after the fact to murder etc

(1)  Every accessory after the fact to murder shall be liable to penal servitude for 25 years.

(2)  Every accessory after the fact to the crime of robbery with arms or in company with one or more person or persons, or the crime of kidnapping referred to in section 90A, shall be liable to penal servitude for fourteen years.

350   Punishment of accessories after the fact to other felonies etc

Every accessory after the fact to any other felony, except where otherwise specifically enacted, whether a felony at Common Law or by Statute, shall be liable to penal servitude for five years.

351   Abettors in misdemeanours—how tried and punished

Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender.

Part 10 Apprehension of offenders, powers of search, powers of entry and discharge of persons in custody

Apprehension of offenders

352   Person in act of committing or having committed offence

(1)  Any constable or other person may without warrant apprehend,

(a)  any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b)  any person who has committed a felony for which he has not been tried,

      and take him, and any property found upon him, before an authorised Justice to be dealt with according to law.

(2)  Any constable may without warrant apprehend,

(a)  any person whom he, with reasonable cause, suspects of having committed any such offence or crime,

(b)  any person lying, or loitering, in any highway, yard, or other place during the night, whom he, with reasonable cause, suspects of being about to commit any felony,

      and take him, and any property found upon him, before an authorised Justice to be dealt with according to law.

(3)  Any constable may, although the warrant is not at the time in his possession, apprehend any person for whose apprehension for a misdemeanour, or an offence punishable as a misdemeanour, a warrant has been issued, and take him, and any property found upon him, before an authorised Justice to be dealt with according to law.

(4)  Any constable may, although the warrant is not at the time in his possession, apprehend any person for whose apprehension on any ground other than a charge of felony or misdemeanour or offence punishable as a misdemeanour a warrant has been lawfully issued, provided the issue of such warrant has been certified by telegraph by the Commissioner of Police or by the Justice who has signed such warrant.

(5)  In this section:

authorised Justice means:

(a)  a Magistrate, or

(b)  a Justice employed in the Department of Courts Administration.

telegraph includes telephone, radio, telex, facsimile transmission, computer used to relay information and any other communication device.

352AA   Arrest of prisoners unlawfully at large

(1)  Any constable may, with or without warrant, apprehend any person whom the constable, with reasonable cause, suspects of being a prisoner unlawfully at large and take the person before an authorised Justice who may, by warrant, commit the person to prison, there to be kept in custody under the same authority, and subject to the same conditions and with the benefit of the same privileges and entitlements, as would have applied in respect of the person had the person not been at large.

(2)  A reference in subsection (1) to a prisoner unlawfully at large is a reference to a person who is at large (otherwise than by reason of having escaped from lawful custody) at a time when the person is required by law to be in custody in prison.

(3)  A constable may apply to an authorised Justice for a warrant for the apprehension of a prisoner whom the constable, with reasonable cause, suspects of being a prisoner unlawfully at large.

(4)  The authorised Justice to whom an application is made under subsection (3) may, if satisfied that there are reasonable grounds for doing so, issue a warrant for the apprehension of the prisoner concerned.

(5)  Section 64 of the Justices Act 1902 applies, with any necessary adaptations, to such a warrant in the same way as it applies to a warrant referred to in that section.

(6)  In this section, authorised Justice means:

(a)  a Magistrate, or

(b)  a Justice employed in the Local Courts Administration, Attorney General’s Department.

352A   Power of arrest in cases of certain offences committed outside the State

(1)  This section applies to an offence:

(a)  that is an offence against the law of a State (other than New South Wales) or a Territory of the Commonwealth, and

(b)  that consists of an act or omission which, if it occurred in New South Wales, would constitute:

(i)  an indictable offence, or

(ii)  an offence punishable by imprisonment for 2 years or more.

(2)  A member of the police force may, at any hour of the day or night and without any warrant other than this Act, apprehend any person whom he has reasonable cause to suspect of having committed an offence to which this section applies.

(3)  A person apprehended under this section shall be brought as soon as practicable before a court and the court:

(a)  may discharge the person, or

(b)  may:

(i)  commit him to custody, or

(ii)  admit him to bail,

      pending the execution under a law of the Commonwealth of a warrant or provisional warrant for his apprehension or his earlier release from bail, or discharge from custody, under subsection (7).

(4)  Subject to this section, a person apprehended under this section for an offence to which this section applies shall generally have the same rights, and be liable to be dealt with in the same way, as a person charged with the commission of the like offence in New South Wales, and in particular:

(a)  a member of the police force may exercise, in respect of a person so apprehended, the powers conferred on him by section 353A, as if the person were in lawful custody upon a charge or for any crime referred to in that section, and

(b)  the provisions of:

(i)  the Bail Act 1978, and

(ii)  the Justices Act 1902,

      shall, with such modifications as may be necessary, apply in relation to the admission of any such person to bail and in relation to proceedings before a court under this section.

(5)  Where a person has been committed to custody under subsection (3) (b) (i) and a warrant for his apprehension is subsequently presented for execution, he shall be delivered in accordance with the terms of the warrant to the custody of the person executing it.

(6)  Where a person has been admitted to bail under subsection (3) (b) (ii) or under Part 3 of the Bail Act 1978, and subsequently, but before he has complied with his bail undertaking, a warrant for his apprehension is executed under a law of the Commonwealth, he shall be deemed, at the time the warrant is executed to be released from that bail and to have complied with any condition or undertaking in relation to that bail at that time outstanding, not being a condition or undertaking with which he has by that time failed, without lawful excuse, to comply.

(7)  Where:

(a)  a person has been admitted to bail or, under subsection (3) (b), committed to custody, and

(b)  a warrant or provisional warrant for his apprehension is not executed within a reasonable time (not exceeding 7 days) thereafter,

      the person may be released from bail or shall be discharged from custody, as the case may require, by order of a court.

(8)  In this section court has the same meaning as it has in the Bail Act 1978.

353   Persons offering stolen property

Every person to whom any property is offered to be sold, or pawned, or delivered, and who has reasonable cause to suspect that an offence has been committed with respect to such property, may, and if in his power is required, to apprehend and forthwith take before a Justice the person offering the same, together with such property, to be dealt with according to law.

353A   Power to search person, make medical examination, take photograph, finger-prints etc

(1)  Where a person is in lawful custody upon a charge of committing any crime or offence:

(a)  any constable, or

(b)  where the person in custody is female and no female constable is available to conduct the search—any female acting under and in accordance with the request of a constable,

      may search the person and take from the person anything found upon that search.

(1A)  A search conducted by a person under and in accordance with a request made by a constable under subsection (1) (b) does not, if the search would be lawful if conducted by a constable, subject the person making the search personally to any action, liability, claim or demand whatever.

(2)  When a person is in lawful custody upon a charge of committing any crime or offence which is of such a nature and is alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of the crime or offence, any legally qualified medical practitioner acting at the request of any officer of police of or above the rank of sergeant, and any person acting in good faith in his aid and under his direction, may make such an examination of the person so in custody as is reasonable in order to ascertain the facts which may afford such evidence.

(3)  When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station where he is so in custody may take or cause to be taken all such particulars as may be deemed necessary for the identification of such person, including, where the person is of or above the age of 14 years, his photograph and finger-prints and palm-prints.

(3A)  A person authorised by subsection (2) to make a medical examination of a person in lawful custody may take samples of the person’s blood, saliva and hair.

(3B)  Evidence concerning the samples may be given only in proceedings concerning the crime or offence in relation to which the samples were taken and the samples must be destroyed as soon as practicable after the conclusion of the proceedings and the exhaustion of any right of appeal concerning the crime or offence.

(3C)  A reference in this section to lawful custody is a reference to lawful custody of the police or any other authority. If a person is in lawful custody in a place other than a police station, the powers under this section of a constable or an officer of police may be exercised by the person in charge of the place or by another person who is normally supervised by that person.

(3D)  The consent of the person in lawful custody is not required for the doing of any thing under this section.

(4)  A court that finds an offence prescribed by or under subsection (7) to be proved against a person may order that the person present himself or herself in accordance with the terms of the order and submit to the taking, by the officer in charge of a police station specified in the order, of all such particulars as may be thought necessary for the identification of the person, including the person’s photograph, finger-prints and palm-prints. When making the order, the court is to warn the person that a failure to comply with the order may result in the person’s apprehension in accordance with subsection (6).

(5)  An order under subsection (4) may be made on the application of the prosecutor or on the court’s own motion, and may be made:

(a)  immediately after the person is sentenced, or

(b)  before the person is sentenced, if the court is satisfied that the making of such an order would assist in resolving doubt about the defendant’s identity.

(6)  At the direction of the officer in charge of the police station specified in an order under subsection (4), a person who does not present himself or herself in accordance with the terms of the order may be apprehended without warrant and taken into custody for such time as may be reasonably necessary for the taking of particulars in accordance with the order.

(7)  An order under subsection (4) may be made in respect of any of the following offences:

(a)  any indictable offence,

(b)  the offence under section 4 of the Traffic Act 1909 of driving a motor vehicle upon a public street furiously or recklessly or at a speed or in a manner which is dangerous to the public,

(c)  an offence under section 4AA, section 4E (1D), (1E) (a) or (b), (1F) (a) or (b), (1G) (a) or (b) or (7), section 4F (7), section 5 (2) (a) or (b), section 5AC (2) or section 8 (2) of the Traffic Act 1909,

(d)  an offence prescribed, or of a kind or description prescribed, by the regulations.

(8)  The Governor may make regulations, not inconsistent with this Act, prescribing any matter required or permitted to be prescribed under this section.

353AA   Photographing, finger-printing etc children under 14 years of age

(1)  This section applies to a child under the age of 14 years who is in lawful custody for any offence punishable on indictment or summary conviction.

(2)  A person shall not take a photograph or the finger-prints or palm-prints of a child to whom this section applies except in accordance with this section. Nothing in this section, however, prevents the taking of any child’s photograph, finger-prints or palm-prints in accordance with the order of a court under section 353A (4).

(3)  A member of the police force of or above the rank of sergeant may, in respect of a child to whom this section applies, apply:

(a)  to the Children’s Court, or

(b)  where it is not possible to apply to the Children’s Court within 72 hours after the taking of the child into custody, to a Justice,

      for an order authorising, for the purpose only of identifying the child, the taking of the child’s photograph, finger-prints and palm-prints.

(4)  The Children’s Court or a Justice, as the case may be, may hear an application under subsection (3) and may make the order sought in the application.

(5)  A child to whom this section applies shall not be held in custody for the purpose only of an application being made under subsection (3).

353AB   Destruction of certain photographs, finger-prints etc

(1)  Where a court finds an offence alleged against a child who has had the child’s photograph, finger-prints and palm-prints taken in accordance with section 353A (3) or 353AA not proved, the court shall cause to be served on:

(a)  the child,

(b)  where practicable, the parents or guardian of the child, and

(c)  any other person who has the care of the child,

      a notice stating that if the child or they so desires or desire, the court will order that the photograph, finger-prints and palm-prints, and any other prescribed records (other than the records of the court), relating to the alleged offence be destroyed and the court may make the order accordingly.

(2)  In this section:

prescribed records means records of the kind prescribed for the purposes of section 38 (1) of the Children (Criminal Proceedings) Act 1987.

353AC   Taking of finger-prints at court—pilot scheme

(1)  A prescribed court that convicts a person of an offence that is punishable by imprisonment, or that finds such an offence to be proved against a person but does not proceed to conviction, must order that the person submit to the taking of his or her finger-prints before the person leaves the building in which the court is situated.

(2)  This section applies regardless of whether the court sentences the person to a term of imprisonment.

(3)  However, the court is not required to make an order under this section if it is satisfied that the person’s finger-prints were taken while the person was in lawful custody for the offence.

(4)  The finger-prints may be taken by a police officer, or by a person specified or described by the court in the order.

(5)  A police officer or person specified or described in the order may detain a person for such time as may be reasonably necessary to take the person’s finger-prints in accordance with the order.

(6)  This section does not prevent a court making an order in respect of a person under section 353A and does not affect any obligation to make an order under section 5AA of the Periodic Detention of Prisoners Act 1981.

(7)  In this section:

imprisonment includes penal servitude.

prescribed court means Parramatta Local Court, Dubbo Local Court and any other court prescribed by the regulations but does not include the Children’s Court or any court while it is exercising jurisdiction as the Children’s Court.

(8)  This section expires at the end of the period of 6 months commencing with the date on which this section commences. If an earlier expiry date is appointed by proclamation, this section expires at the end of the date so appointed.

353B   Person apprehended carrying razor etc

Where a person is in lawful custody upon a charge of committing any crime or offence and is found to have been carrying at the time or immediately before he was apprehended any razor, razor blade or other cutting weapon, he shall, unless the justice before whom he is brought is satisfied that he was carrying the same for a lawful purpose the proof of which shall lie upon the accused, be liable to imprisonment for a term not exceeding six months, or to a fine of 5 penalty units, or both.

353C   Arrest by commander of aircraft

(1)  The person in command of an aircraft may, on board the aircraft, with such assistance as is necessary, arrest without warrant a person whom he 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, an aircraft and that person in command or a person authorised by him for the purpose may hold the person so arrested in custody until he can be brought before a Justice or other proper authority to be dealt with according to law.

(2)  The person in command of an aircraft may, where he considers it necessary so to do 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 he thinks necessary:

(a)  place a person who is on board the aircraft under restraint or in custody, or

(b)  if the aircraft is not in the course of a flight, remove a person from the aircraft.

354–356   (Repealed)

Powers of search

357   Searching for and seizing firearms etc

(1)  This section applies:

(a)  to any indictable offence, and

(b)  to an offence against section 545E, and

(c)  to an offence against the Prohibited Weapons Act 1989, the Firearms Act 1989 or a regulation made under either of those Acts.

(2)  If a member of the police force suspects, on reasonable grounds, that a dangerous article is being or has been used in the commission of an offence to which this section applies and that it is in the possession of any person in a public place or is in any vehicle, vessel, aircraft, package or receptacle which is in a public place and is in the possession or under the control of any person, the member may, without warrant:

(a)  detain and search the person and any such vehicle, vessel, aircraft, package or receptacle, and

(b)  seize and detain any dangerous article found as a result of the search.

(3)  A member of the police force who for the time being is lawfully in any premises may seize and detain any dangerous article which the member finds in those premises and in respect of which the member suspects, on reasonable grounds, that an offence to which this section applies is being or has been committed.

(4)  Where a member of the police force:

(a)  enters a dwelling-house in pursuance of an invitation (as referred to in section 357F) or in pursuance of a warrant granted under section 357G, for the purpose (in either case) of investigating whether an offence that the member of the police force suspects or believes to be a domestic violence offence has been committed or for the purpose of taking action to prevent the commission or further commission of such an offence, and

(b)  has reasonable cause to believe:

(i)  that a firearm (within the meaning of the Firearms Act 1989) or a spear gun is in the dwelling-house, and

(ii)  that the firearm or spear gun has been or may be used to commit a domestic violence offence,

      the member of the police force may search the dwelling-house for the firearm or spear gun and seize and detain the firearm or speargun.

(5)  In this section:

dangerous article means:

(a)  a firearm (within the meaning of the Firearms Act 1989) or a spare barrel for any such firearm, a prohibited weapon or prohibited article (within the meaning of the Prohibited Weapons Act 1989) or ammunition for any such firearm, prohibited weapon or prohibited article, or

(b)  a spear gun, or

(c)  an article or device, not being such a firearm, capable of discharging by any means:

(i)  any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or

(ii)  any substance capable of causing bodily harm, or

(d)  a fuse capable of use with an explosive or a detonator, or

(e)  a detonator.

premises means any building, structure, vehicle, vessel or aircraft and any place, whether built on or not.

357A   Powers of search

(1)  Where any person reasonably suspects that an offence involving the safety of an aircraft has been, is being or may be committed on board or in relation to an aircraft and:

(a)  he is the commander of the aircraft, or

(b)  a Justice, on the basis of that suspicion, authorises him in writing so to do,

      he may, subject to subsection (2), search the aircraft, any person on board, or about to board, the aircraft and any luggage or freight on board, or about to be placed on board, the aircraft.

(2)  A female shall not be searched pursuant to subsection (1) except by a female.

357B   Definitions

In sections 357C and 357D:

police vessel means a vessel ordinarily used by members of the police force in the execution of their duty.

vessel includes an undecked boat.

357C   Police may board vessels

A member of the police force of or above the rank of sergeant or in charge of a police station or police vessel may at any time with as many members of the police force as he thinks necessary:

(a)  enter into any part of any vessel,

(b)  search and inspect the vessel,

(c)  take all necessary measures for preventing injury on the vessel to persons or damage to property by fire or otherwise, and

(d)  take all necessary measures for preserving peace and good order on the vessel or for preventing, detecting or investigating any offences that may be, or may have been, committed on the vessel.

357D   Police may stop and detain vessels

A member of the police force of or above the rank of sergeant or in charge of a police station or police vessel, may, for the purposes of enabling any powers conferred on members of the police force by this Act or any other law to be exercised, stop and detain any vessel in which he reasonably suspects:

(a)  that an indictable offence has been or is about to be committed,

(b)  that there is a person who has committed an indictable offence or for whose arrest there is in force a warrant, or

(c)  that there is any thing stolen or otherwise unlawfully obtained or any thing that has been used or is intended to be used in the commission of an indictable offence.

357E   Police may stop and search persons and vehicles

A member of the police force may stop, search and detain:

(a)  any person whom he reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence, or

(b)  any vehicle in which he reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence.

Powers of entry and search in cases of child prostitution or pornography

357EA   Police may enter and search

(1)  A member of the police force may apply to an authorised justice for the issue of a search warrant if the member of the police force has reasonable grounds for believing that an offence against section 91D, 91E, 91F or 91G has recently been committed, is being committed or, within 72 hours, will be committed on or with respect to any premises.

(2)  An authorised justice to whom an application is made under subsection (1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force:

(a)  to enter and search the premises concerned for evidence of an offence against section 91D, 91E, 91F or 91G, and

(b)  to make in the premises inquiries relating to such an offence, and

(c)  to seize any article that may be evidence of such an offence.

(3)  Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.

(4)  In this section:

authorised justice has the same meaning as in the Search Warrants Act 1985.

Powers of entry and search in relation to child pornography

357EB   (Repealed)

Powers of entry in cases of domestic violence

357F   Entry by invitation

(1)  In this section, occupier, in relation to a dwelling-house, means a person immediately entitled to possession of the dwelling-house.

(2)  A member of the police force who believes on reasonable grounds that an offence has recently been or is being committed, or is imminent, or is likely to be committed, in any dwelling-house and that the offence is a domestic violence offence, may, subject to subsection (3):

(a)  enter the dwelling-house, and

(b)  remain in the dwelling-house,

      for the purpose of investigating whether such an offence has been committed or, as the case may be, for the purpose of taking action to prevent the commission or further commission of such an offence, if invited to do so by a person who apparently resides in the dwelling-house, whether or not the person is an adult.

(3)  Except as provided in subsection (4), a member of the police force may not enter or remain in a dwelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not otherwise authorised (whether under this or any other Act or at common law) to so enter or remain.

(4)  The power of a member of the police force to enter or remain in a dwelling-house by reason of an invitation given as referred to in subsection (2) by the person whom the member of the police force believes to be the person upon whom a domestic violence offence has recently been or is being committed, or is imminent, or is likely to be committed in the dwelling-house may be exercised by the member of the police force notwithstanding that an occupier of the dwelling-house expressly refuses authority to the member of the police force to so enter or remain.

357G   Entry by radio/telephone warrant etc where entry denied

(1)  In this section, a reference to:

(a)  a telephone includes a reference to a radio or any other communication device, and

(b)  a stipendiary magistrate includes a reference to a Justice employed in Local Courts Administration, Attorney General’s Department.

(2)  (Repealed)

(3)  Upon complaint made by a member of the police force to a stipendiary magistrate that:

(a)  the member of the police force has been denied entry to a specified dwelling-house, and

(b)  the member of the police force suspects or believes that:

(i)  a domestic violence offence has recently been or is being committed, or is imminent, or is likely to be committed in the dwelling-house, and

(ii)  it is necessary for a member of the police force to enter the dwelling-house immediately in order to investigate whether a domestic violence offence has been committed or, as the case may be, to take action to prevent the commission or further commission of a domestic violence offence,

      the stipendiary magistrate may, if satisfied that there are reasonable grounds for that suspicion or belief, by warrant, authorise and require the member of the police force to enter the dwelling-house and to investigate whether a domestic violence offence has been committed or, as the case may be, to take action to prevent the commission or further commission of a domestic violence offence.

(4)  A complaint under this section may be made by a member of the police force to a stipendiary magistrate in person or by telephone and may be made directly to the stipendiary magistrate or, where, in all the circumstances, it is impracticable to make the complaint directly, by causing the complaint to be transmitted by another member of the police force by either of those means.

(5)  The fact that a complaint is made under this section to a stipendiary magistrate by a member of the police force who causes the complaint to be transmitted by another member of the police force to the stipendiary magistrate does not, if the stipendiary magistrate is of the opinion that it is, in all the circumstances, impracticable to communicate directly with the member of the police force making the complaint, prevent the stipendiary magistrate being satisfied as to the matters referred to in subsection (3).

(6)  A stipendiary magistrate grants a warrant under subsection (3) by stating the terms of the warrant.

(7)  Where a stipendiary magistrate grants a warrant under subsection (3), the stipendiary magistrate shall cause a record to be made in writing in a form prescribed by regulations made under subsection (14) of:

(a)  the name of the member of the police force who was the complainant,

(b)  where the complaint was transmitted by a member of the police force on behalf of the complainant—the name of the member of the police force who so transmitted the complaint,

(c)  the details of the complaint, including the name of any person who is alleged to have informed the police as to the domestic violence the subject of the warrant and the grounds which the stipendiary magistrate was satisfied were reasonable grounds for the suspicion or belief by reason of which the warrant was granted,

(d)  the terms of the warrant (which shall include the address of the dwelling-house the subject of the warrant), and

(e)  the date and time the warrant was granted.

(8)  A warrant granted under subsection (3) shall be executed as soon as practicable after the warrant is granted and may be executed by day or night.

(9)  For the purpose of executing a warrant granted under subsection (3), a member of the police force may use force, whether by breaking open doors or otherwise, for the purpose of entering a dwelling-house.

(10)  A member of the police force may execute a warrant granted under subsection (3) with the aid of such assistants as the member of the police force deems necessary.

(11)  A warrant granted under subsection (3) is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.

(12)  Where a warrant has been granted under subsection (3) a record in triplicate in a form prescribed by regulations made under subsection (14) shall be made containing the following details:

(a)  the address of the dwelling-house the subject of the warrant,

(b)  the name of the stipendiary magistrate who granted the warrant,

(c)  the name of the member of the police force who was the complainant authorised to enter the dwelling-house pursuant to the warrant,

(d)  the time at which the warrant was granted.

(13)  The copies of a record relating to a warrant and made as referred to in subsection (12) shall be dealt with as follows:

(a)  the first copy shall, upon entry into the dwelling-house the subject of the warrant or as soon as practicable thereafter, if a person who appears to reside in the dwelling-house and to be of or above the age of 18 years is present, be furnished to such a person together with a statement in a form prescribed by regulations made under subsection (14) and containing a summary of the nature of the warrant and the powers given by the warrant,

(b)  the second and third copies shall be endorsed with:

(i)  the name of the person (if any) who informed the police as to the domestic violence the subject of the warrant, and

(ii)  a notation as to whether a dwelling-house was entered pursuant to the warrant and, if so, the time of entry and the action taken in the dwelling-house,

(c)  the second copy shall be forwarded to the director of the Magistrates Courts Administration or such other officer as may be prescribed for the purposes of this subsection by regulations made under subsection (14),

(d)  the third copy shall be retained by the member of the police force authorised to enter a dwelling-house pursuant to the warrant to be dealt with in such manner as may be prescribed by regulations made under subsection (14).

(14)  The Governor may make regulations, not inconsistent with this Act, prescribing any matter required or permitted to be prescribed under this section.

357H   Provisions relating to powers of entry under sections 357F and 357G

(1)  Where a member of the police force enters a dwelling-house in pursuance of an invitation (as referred to in section 357F), or in pursuance of a warrant granted under section 357G, for the purpose, in either case, of investigating whether an offence which the member of the police force suspects or believes to be a domestic violence offence has been committed, or, as the case may be, for the purpose of taking action to prevent the commission or further commission of such an offence, the member of the police force:

(a)  is to take only such action in the dwelling-house as is reasonably necessary:

(i)  to investigate whether such an offence has been committed,

(ii)  to render aid to any person who appears to be injured,

(iii)  to exercise any lawful power to arrest a person, and

(iv)  to prevent the commission or further commission of such an offence, and

(a1)  must inquire as to the presence of any firearms in the dwelling-house and, if informed that there is a firearm or firearms, must take all such action as is reasonably practicable to search for and to seize the firearm or firearms, and

(b)  is to remain in the dwelling-house only as long as is reasonably necessary to take that action.

(2)  Nothing in subsection (1) or in section 357F or 357G limits any other power which a member of the police force may have under this or any other Act or at common law to enter or remain in or on premises.

357I   Police may enter and search for firearms

(1)  If, on inquiry under section 357H (1) (a1), a member of the police force is informed that there is no firearm in the dwelling-house concerned but a member of the police force has reasonable cause to believe that there is a firearm or firearms in the dwelling-house, a member of the police force must apply to an authorised justice for the issue of a search warrant.

(2)  A member of the police force who believes on reasonable grounds that:

(a)  a domestic violence offence has recently been or is being committed, or is imminent, or is likely to be committed, otherwise than in a dwelling-house, and

(b)  any of the persons concerned may have a firearm in a dwelling-house,

      must apply to an authorised justice for the issue of a search warrant.

(3)  An authorised justice to whom an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force:

(a)  to enter and search the dwelling-house concerned for firearms, and

(b)  to seize any firearms that may be found in the dwelling-house.

(4)  Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.

(5)  In this section, authorised justice has the same meaning as in the Search Warrants Act 1985.

Discharge of persons in custody

358   When case not to be proceeded with gaoler to discharge prisoner on certificate from Attorney-General or Director of Public Prosecutions

(1)  The Attorney-General or the Director of Public Prosecutions may, in respect of any person under committal for trial, and in all cases in which any person is remanded to prison, and in which he may in his discretion think fit not further to proceed, transmit at any time a certificate to the Judges of the Supreme Court, any one of whom may thereupon by warrant direct the gaoler in whose custody the prisoner, or person under remand, may be to discharge him from custody in respect of the offence mentioned in such warrant, and, if such gaoler neglects so to do, he shall be liable to a fine of 1 penalty unit, to be recovered in the name of the Attorney-General in any court of competent jurisdiction as a debt or liquidated demand.

(2)  In the case of a person under committal for trial, the certificate shall be in the Form No 1 in the Third Schedule, and the warrant in the Form No 2 in the said Schedule.

(3)  In the case of a person under remand, the certificate shall be in Form No 3, and the warrant in Form No 4 in the said Schedule.

Disposal of property in the custody of the police

358A   (Repealed)

358B   Disposal of seized firearms etc

(1)  If a dangerous article is seized and detained under section 357, 357H or 357I, a Local Court constituted by a Magistrate sitting alone may, on application made by a person claiming to be entitled to possession of the article (being an application made at least 21 days after the seizure of the article), order that the article be returned to the person, unless:

(a)  a person has been charged with an offence in respect of the article, and

(b)  the charge has not been withdrawn or finally determined by the person’s having been found not guilty of the offence,

      or the article has been forfeited to the Crown under subsection (2).

(2)  Any such article shall, at the expiration of 90 days after seizure of the article, be forfeited to the Crown, unless, before the expiration of that period:

(a)  an order has been made under subsection (1) with respect to the article, or

(b)  a person has been found guilty (whether or not the person has been convicted) of an offence in respect of the article, and the court in which proceedings for the offence were taken, on the application of that or any other person, has otherwise ordered.

(3)  Despite subsections (1) and (2), if a firearm or spear gun is seized and detained under section 357 (4), 357H (1) (a1) or 357I, the Commissioner of Police shall cause the firearm or spear gun to be returned, when 21 days have expired after its seizure, to the person who was, when the firearm or speargun was seized, occupying or using the dwelling-house in which the firearm or spear gun was seized or to the person from whom the firearm or spear gun was seized unless:

(a)  the person is the subject of a firearms prohibition order under the Firearms Act 1989, or

(b)  possession of the firearm or spear gun by the person would otherwise constitute an offence, or

(c)  before those 21 days expire, a person has been charged with an offence in respect of the firearm or spear gun.

(4)  (Repealed)

Offence relating to escaped prisoners

358C   Harbouring escapee from another State or Territory

Any person who, in this State, knowingly harbours, maintains or employs a prisoner who has escaped from lawful custody in another State or a Territory is liable to penal servitude for 3 years.

Part 11 Procedure, evidence, verdict, &c

As to indictment—form, venue, amendments, &c

359   Meaning of “Statute” and “Act” in indictments etc

In all indictments and informations, and all criminal pleadings and proceedings, the word Statute, and the word Act, used to indicate an enactment shall each include an Imperial Act as well as an Act.

360   What defects shall not vitiate an indictment

No indictment shall be held bad or insufficient for want of an averment of any matter unnecessary to be proved, or necessarily implied, nor for the omission of the words “as appears by the record”, or “with force and arms”, or “against the peace”, nor for the insertion or omission of the words “against the form of the statute”, nor for designating any person by a name of office, or other descriptive appellation, instead of his proper name, nor for omitting to state the time at which the offence was committed, nor for stating the time wrongly, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or a day that never happened, nor for want of a proper or perfect venue, or a proper or formal conclusion, nor for the omission or improper insertion of the word “feloniously”, nor for want of or imperfection in any addition of the accused, nor for want of any statement of the value or price of any matter or thing, or the amount of damage, or injury, in any case where such value, or price, or amount, is not of the essence of the offence.

360A   Indictment etc of corporations

(1)  Every provision of an Act relating to offences punishable upon indictment or upon summary conviction may, unless a contrary intention appears, be construed to apply to bodies corporate as well as to individuals.

(2)  Where a corporation whether alone or jointly with some other person is charged before justices with an indictable offence, the justices may, if they are of opinion that the evidence is sufficient to put the accused corporation upon trial, make an order authorising an indictment to be filed for the offence named in the order or for such other offence as the Attorney-General or any other person authorised by law to prosecute indictable offences shall deem proper, and such order shall be deemed to be a committal for trial:

Provided that:

(a)  where the offence is an offence which in the case of an adult may be dealt with summarily and the corporation does not appear by a representative or, if it does so appear, consents that the offence should be so dealt with, the offence may be dealt with summarily, and

(b)  if the corporation appears by a representative any answer to the question to be put under section 41 (4) of the Justices Act 1902 may be made on behalf of the corporation by that representative, but if the corporation does not so appear it shall not be necessary to put the question.

(3)  Where a bill is found against a corporation the corporation may on arraignment enter in writing by its representative a plea of guilty or not guilty. If no such plea is entered the court shall enter a plea of not guilty and the trial shall proceed as though the corporation had pleaded not guilty.

(4)  A representative need not be appointed under the seal of the corporation, and a written statement purporting to be signed by any person being one of the persons having the management of the affairs of the corporation to the effect that the person named has been appointed as the representative of the corporation shall be admissible as prima facie evidence that the person has been so appointed.

(5)  Any summons or other document may be served upon the corporation by leaving it at or sending it by post to the registered office of the corporation or to any place at which it trades or carries on business.

(6)  Where the penalty in respect of any offence is a term of imprisonment only, the court imposing punishment may, if it thinks fit, in the case of a body corporate, impose a pecuniary penalty not exceeding:

(a)  2,000 penalty units if the court is constituted by a Judge of the Supreme Court or District Court, or

(b)  100 penalty units if the court is not so constituted.

(6A)  In subsection (6), imprisonment includes penal servitude.

(7)  For the avoidance of doubt it is hereby declared that for the purposes of this section indictable offence means an offence punishable on indictment at common law or under any Act or Imperial Act.

361   Venue in indictment

(1)  New South Wales shall be a sufficient venue for all places, whether the indictment is in the Supreme Court or any other Court having criminal jurisdiction:

Provided that some district or place, within, or at, or near which the offence is charged to have been committed, shall be mentioned in the body of the indictment.

(2)  Every such district or place shall be deemed to be in New South Wales, and within the jurisdiction of the Court unless the contrary is shown.

362   Formal objections when to be taken

Every objection to an indictment, for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment before the jury are sworn, and every Court before which any such objection is taken may thereupon cause the indictment to be forthwith amended, and afterwards the trial shall proceed as if no such defect had appeared.

363   Judgment on demurrer to indictment

In all cases of felony and misdemeanour alike, the judgment against the accused on demurrer shall be that he “answer over” to the charge.

364   Traversing indictment

No traverse shall in any case be allowed, or trial postponed, or time to plead to the indictment given, unless the Court shall so order:

Provided that where the Judge is of opinion that the accused ought to be allowed time, either to prepare for his defence, or otherwise, such Judge shall postpone the trial upon such terms as to him seems meet, and may respite the recognizances of the prosecutor and witnesses accordingly.

365   Orders for amendment of indictment, separate trial and postponement of trial

(1)  Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.

(2)  Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of 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 one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.

(3)  Where, before trial, or at any stage of a trial, the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Act to amend an indictment or to order a separate trial of a count, the court shall make such order as appears necessary.

(4)  Where an order of the court is made under this section for a separate trial, or for the postponement of a trial:

(a)  if such an order is made during a trial, the court may order that the jury are to be discharged from giving a verdict on the count or counts the trial of which is postponed, or on the indictment as the case may be, and

(b)  the procedure on the separate trial of a count and the procedure on the postponed trial shall be the same in all respects (if the jury has been discharged), as if the trial had not commenced, and

(c)  the court may, subject to the Bail Act 1978, commit the accused person to prison or make such order as to the enlargement of recognizances and otherwise as the court thinks fit.

(5)  Any power of the court under this section shall be in addition to and not in derogation of any other power of the court for the same or similar purposes.

366   Amended indictment

Where any indictment is amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment in its amended form shall be treated as the indictment for the purposes of the trial, and for the purposes of all proceedings in connection therewith or consequent thereon.

367   Verdict and judgment valid after amendment

Every verdict, and judgment, given after the making of any amendment under this Act, shall be of the same force and effect, as if the indictment had originally been in the words, and form, in which it is after such amendment.

368   Form of record after amendment

If it is necessary at any time to draw up a formal record, in any case where an amendment has been made, such record may be drawn up in the words and form of the amended indictment, without noticing the fact of amendment.

369   Respiting recognizances on postponement

In all cases where the trial is postponed the Court may respite the recognizance of the prosecutor and witnesses requiring them severally to appear and prosecute, or give evidence, at the time and place to which the trial is so postponed.

370   Separate offences when can be joined

In every case counts may be inserted in the same indictment, against the same person, for any number of distinct offences of the same kind, not exceeding three, committed against the same person:

Provided that no more than six months have elapsed between the first and last of such offences:

Provided further that nothing in this section shall affect the right of the Crown to insert alternative counts in any indictment describing the offence in different terms.

371   Accessories may be charged together in one indictment

In every case of felony, at Common Law or by Statute, any number of accessories thereto, whether before or after the fact, may be charged with substantive felonies in the same indictment, and be tried together, although the principal felon is not included in such indictment, or is not in custody or amenable to justice.

372   Indictment charging previous offence also

In an indictment for an offence committed after a previous conviction for an offence, whether indictable or punishable on summary conviction, it shall be sufficient, after charging the subsequent offence, to state that the accused was theretofore at a certain time and place convicted of an indictable offence, or an offence punishable on summary conviction, as the case may be, without particularly describing such previous offence.

373   Description of partners etc

Whenever, in any indictment, it is necessary to mention, for any purpose, any partners, joint-tenants, parceners, or tenants in common, it shall be sufficient to describe them by naming one of such persons, and referring to the rest as “another”, or “others”, as the case may be.

This provision shall extend to all joint stock companies, executors, administrators, and trustees.

374   Description of written instruments

In every case where a written, or printed, instrument, or instrument partly written and partly printed, is the subject of an indictment, or it is necessary to make an averment in an indictment respecting such instrument, it shall be sufficient to describe such instrument by any name or designation by which the same is usually known, or by the purport thereof, without setting out any copy thereof, or otherwise describing the same, and without stating the value thereof.

375   General averment of intent to defraud or injure

(1)  In every case where it is necessary to allege an intent to defraud, or injure, it shall be sufficient to allege that the accused did the act with such intent, without alleging an intent to defraud, or injure, any particular person.

(2)  In an indictment for doing an act fraudulently, or for a fraudulent purpose, it shall not be necessary to state what was the fraudulent intent, or purpose.

376, 377   (Repealed)

378   Form of indictment against accessories to murder

In an indictment against an accessory to murder, or manslaughter, it shall be sufficient to charge the felony of the principal in the manner hereinbefore specified, and then to charge the accused as an accessory in the manner heretofore accustomed.

379–380   (Repealed)

381   Indecent assault

In an indictment for an indecent assault it shall be sufficient to state that the accused did, on the day and at the place named, commit an indecent assault on the person alleged to have been assaulted, without stating the mode of such assault.

382   Where not necessary to lay property in any person

In an indictment in respect of any of the matters mentioned in the Fourth Schedule, it shall not be necessary to allege that the instrument, document, building, chattel, or other matter, or thing, in respect of which the offence was committed, is the property of any person.

383   Property of partners or joint owners

In an indictment wherein it is necessary to state the ownership of property belonging to more than one person, whether as partners in trade, joint-tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to allege such property to belong to the person so named, and another, or others as the case may be.

This provision shall extend to all joint stock companies, executors, administrators, and trustees.

384   Stealing and receiving in one indictment

In an indictment containing a charge of feloniously stealing property, a count may be added, against the same person, for feloniously receiving the same, or any part thereof, knowing the same to have been stolen, and the prosecutor shall not be put to his election as to such charges.

385   Separate receivers may be charged in one indictment

Whenever any property has been stolen, taken, embezzled, obtained, or fraudulently applied, or disposed of, in such a manner as to amount to felony at Common Law or by Statute, any number of receivers at different times of such property, or of parts thereof, may be charged with substantive felonies in the same indictment, and be tried together, although the principal felon is not included in such indictment, or is not in custody or amenable to justice.

386   Allegations in indictment as to money or securities stolen

In an indictment for stealing, taking, receiving, or embezzling, or for the misappropriation, or fraudulent application, or disposal, of money, or any valuable security, or for the obtaining of money or any valuable security by any threat, or false pretence, or partly by a false pretence and partly by a wilfully false promise, it shall be sufficient to describe the property as a certain amount of money, or as a certain valuable security, without specifying any particular kind of money or security, which description shall be sustained by proof of the taking, receiving, embezzling, appropriating, disposal, or obtaining, of any money or valuable security, although some part of the value thereof was agreed to be, or was in fact, returned, and although, as it respects money, the particular kind of money is not proved, or provable.

387   Indictment for stealing by tenants

In every case of stealing any chattel let to be used in, or with, any house, or lodging, an indictment in the common form as for larceny, and in every case of stealing any fixture so let as aforesaid, an indictment in the same form as if the offender were not a tenant, or lodger, shall be sufficient, and in either case the property may be laid in the owner, or the person letting to hire.

388   Indictment for stealing deeds

In an indictment for stealing, embezzling, destroying, cancelling, obliterating, or concealing, any document of title to land, or any part thereof, it shall be sufficient to allege such document to contain evidence of the title to such land, and to mention the person, or one of the persons, having an interest in such land, or some part thereof.

389   Indictment for larceny by public servant, property to be laid in the Queen

In an indictment for larceny, or embezzlement, as a public servant, the property may be described as the property of Her Majesty, from whom it shall be deemed to have been stolen.

390   Description in indictment for engraving etc

In an indictment for engraving, or making the whole, or any part, of any instrument, or thing, or using, or having possession of any plate, or material upon which the whole, or any part, of any instrument or thing, is engraved, or made, or for having possession of paper upon which the whole, or any part, of any instrument, or thing, is made or printed, it shall be sufficient to describe such instrument, or thing, by any name or designation by which it is usually known, without setting out any copy of the same, or any part thereof.

391   Indictment for sale etc of counterfeit coin

In an indictment, under this Act, respecting the unlawful buying, or selling, of counterfeit coin, it shall not be necessary to allege at what rate, or for what price, the same was bought, sold, received, or paid, or put off, or offered so to be.

392   Indictment for perjury

In an indictment for perjury it shall be sufficient to allege that the accused on a certain day and at a certain place, before a person named, falsely swore, or falsely declared, or affirmed, the matter charged as false, stating the substance only of such matter, and averring that the same was so sworn, declared or affirmed, on an occasion when the truth of such matter was material, without specifying the occasion, or showing how the matter was material, or what was the cause or trial or inquiry, if any, pending, or the judicial, or official character of the person administering the oath, or taking the declaration, or affirmation, charged as false, and it shall be sufficient to state generally that the matter charged as having been falsely sworn was false in fact without negativing each assignment specifically.

393   Indictment for conspiracy

In an indictment for conspiracy, it shall not be necessary to state any overt act, and each defendant in any case of conspiracy, whether two or more defendants are included in the same indictment or not, may be charged separately, in any count, as having conspired with divers persons, of whom it shall be sufficient to name one only, or as having conspired with one other named person only, and may be convicted on such count upon proof of his having unlawfully conspired for the purpose therein alleged with any one such person:

Provided always, that no more than three counts against the same defendant shall be inserted in any such indictment, and that the Court may, in any case before plea pleaded, order such particulars to be given, as to such Court shall seem meet, and that where conspiracies substantially different are charged in the same indictment, the prosecutor may be put to his election as to the one on which he will proceed.

Arraignment, plea, and trial

394   Arraignment etc on charge of previous conviction

(1)  No person shall be arraigned, in respect of any previous conviction charged in any indictment, unless he is convicted of the subsequent offence charged therein.

(2)  Upon such conviction he shall forthwith be arraigned, and the jury shall be charged as to such previous conviction, or convictions, and the trial shall proceed in respect thereof.

394A   Conviction on indictment

Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned.

395   Plea of “not guilty”

If any person arraigned on an indictment pleads thereto “not guilty”, he shall, without further form, be deemed to have put himself upon the country for trial, and the Court shall, in the usual manner, order a jury for his trial accordingly.

396   Refusal to plead

If any person being so arraigned stands mute, or will not answer directly to the indictment, the Court may order a plea of “not guilty” to be entered on behalf of such person, and the plea so entered shall have the same effect as if he had actually pleaded the same.

397, 398   (Repealed)

399   Plea of autrefois convict etc

In any plea of autrefois convict, or of autrefois acquit, it shall be sufficient for the accused to allege that he has been lawfully convicted, or acquitted, as the case may be, of the offence charged in the indictment, without specifying the time or place of such previous conviction or acquittal.

400   Practice as to entering the dock

In every case, whether of felony or misdemeanour, the presiding Judge shall have power to order the accused to enter the dock or usual place of arraignment, or to allow him to remain on the floor of the Court, and in either case to sit down, as such Judge shall see fit.

401   (Repealed)

402   Accused may be defended by counsel

Every accused person shall, in all Courts, be admitted to make full answer and defence by counsel, and in every case may reserve his address until the close of the evidence for the defence, and in the latter case, all evidence in reply for the Crown and any address by the prosecutor shall be given before such address for the defence.

403   Right to inspect depositions on trial

Every accused person shall be entitled on his trial to inspect, without fee or reward, all depositions taken against him and returned into, or which shall be in, the Court before which he is under trial.

404   (Repealed)

404A   Abolition of an accused’s right to make unsworn statement or to give unsworn evidence

(1)  Any rule of law or procedure or practice permitting a person who is charged with the commission of a criminal offence to make an unsworn statement or to give unsworn evidence in answer to the charge is abolished.

(2)  Nothing in this section prevents a person from giving unsworn evidence under Part 6 of the Oaths Act 1900.

405   Address to jury by accused

(1)  Every accused person on his trial, whether defended by counsel or not, may, after the prosecutor has addressed the jury or has declined to address the jury, personally or by his counsel, address the jury.

(2)  Where the accused intends to give evidence or to call any witness or witnesses in support of the defence the accused or his counsel shall be entitled to open the case for the defence before calling his evidence.

(3)  Where, in the closing address by or on behalf of the accused, relevant facts are asserted which are not supported by any evidence that is before the jury, the Court may grant leave to counsel for the Crown to make a supplementary address to the jury replying to any such assertion.

405AA   Summary by Judge

(1)  A Judge of the Supreme Court or District Court need not summarise, at the end of a criminal trial before a jury, the evidence given in the trial if the Judge is of the opinion that, in all the circumstances of the trial, the summary is not necessary.

(2)  This section applies despite any rule of law or practice to the contrary.

(3)  Nothing in this section affects any aspect of a Judge’s summing up function other than the summary of evidence in a trial.

(4)  This section extends to trials commenced, but not concluded, before the commencement of this section.

405A   Notice of alibi

(1)  On a trial on indictment the defendant shall not without the leave of the Court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.

(2)  Without prejudice to subsection (1), on a trial on indictment the defendant shall not without the leave of the Court call any other person to give evidence in support of an alibi unless:

(a)  the notice under that subsection includes the name and address of the person, or, if the name or address is not known to the defendant at the time he gives the notice, any information in his possession which might be of material assistance in finding the person,

(b)  if the name or the address is not included in the notice, the Court is satisfied that the defendant before giving the notice took, and thereafter continued to take, all reasonable steps to secure that the name or the address would be ascertained,

(c)  if the name or the address is not included in the notice, but the defendant subsequently discovers the name or address or receives other information which might be of material assistance in finding the person, he forthwith gives notice of the name, address or other information, as the case may be, and

(d)  if the defendant is notified by or on behalf of the Crown that the person has not been traced by the name or at the address given by the defendant, he forthwith gives notice of any information which might be of material assistance in finding the person and which is then in his possession or, on subsequently receiving any such information, forthwith gives notice of it.

(3)  The Court shall not refuse leave under this section if it appears to the Court that on the committal for trial of the defendant he was not informed by the committing justice of the requirements of subsections (1), (2) and (5), and the statement in writing of the committing justice that the defendant was so informed shall be evidence that the defendant was so informed.

(4)  Any evidence tendered to disprove an alibi may, subject to any direction by the Court, be given before or after evidence is given in support of the alibi.

(5)  Any notice purporting to be given under this section on behalf of the defendant by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the defendant.

(6)  A notice under this section shall be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, or by leaving it at his office, or by sending it in a registered letter or by certified mail addressed to him at his office.

(7)  In this section:

evidence in support of an alibi means evidence tending to show that by reason of the presence of the defendant 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 ten days commencing at the time of the committal of the defendant for trial.

405B   Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1)  (Repealed)

(2)  Where on the trial of a person for a prescribed sexual offence evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the person upon whom the offence is alleged to have been committed or to suggest delay by that person in making any such complaint, the Judge shall:

(a)  give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b)  inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault.

405C   (Repealed)

405D   Closed-circuit television may be used for giving child victim’s evidence

(1)  In any criminal proceedings in which it is alleged that the accused person has committed a prescribed sexual offence on a child, the court may, on the application of the prosecution, make an order permitting the child’s evidence to be given by means of closed-circuit television facilities.

(2)  If the court is not equipped with closed-circuit television facilities or it otherwise considers it appropriate to do so, the court may, for the purpose of permitting the child’s evidence to be given by means of such facilities, adjourn the proceedings or any part of them to a court that is equipped with such facilities.

(2A)  If, pursuant to an order under subsection (1), a child’s evidence is permitted to be given from other premises:

(a)  the court may also order a court officer to be present at those other premises, or any other person to be present with the child as a support or interpreter, or both, and

(b)  those other premises are taken to be part of the court in which the proceedings are being held.

(3)  An order may only be made under subsection (1) if the court is satisfied:

(a)  that it is likely that the child would suffer mental or emotional harm if required to give evidence in the ordinary way, or

(b)  that it is likely that the facts would be better ascertained if the child’s evidence is given in accordance with such an order.

(4)  The court may vary or revoke an order made under this section, either of its own motion or on application by a party to the proceedings.

(5)  In this section, child, in relation to any proceedings, means a child under the age of 16 years at the time that the child is giving evidence in the proceedings.

405E   Use of closed-circuit television facilities

(1)  Closed-circuit television facilities used for the giving of evidence by a child are to be operated in such a manner that the persons who have an interest in the proceedings are able to see the child (and any person present with the child) on the same or another television monitor.

(2)  The Governor may make regulations for or with respect to the use of closed-circuit television facilities for the giving of evidence by children in accordance with an order made under section 405D.

(3)  Rules of court may (subject to the regulations) also make provision for or with respect to the use of closed-circuit television facilities for the giving of evidence by children in accordance with an order made under section 405D.

405F   Alternative arrangements for child victim’s evidence

(1)  In any criminal proceedings in which it is alleged that the accused person has committed a personal assault offence on a child, the court may, of its own motion or on the application of the prosecution, direct alternative arrangements to be made for the giving of evidence by the child.

(2)  Without limiting the generality of subsection (1), the following alternative arrangements may be directed to be made:

(a)  seating arrangements for persons who have an interest in the proceedings (including the level at which they are seated and the persons in the child’s line of vision),

(b)  the use of screens,

(c)  adjournment of the proceedings or any part of the proceedings to other premises.

(2A)  Any premises to which proceedings are adjourned for the purposes of subsection (2) are taken to be part of the court in which the proceedings are being held.

(3)  The court may vary or revoke a direction made under this section, either of its own motion or on application by a party to the proceedings.

(4)  Nothing in this section limits any discretion that a court has with respect to the conduct of proceedings in any case.

(5)  In this section:

child, in relation to any proceedings, means a child under the age of 16 years at the time that the child is giving evidence in the proceedings.

personal assault offence means an offence under:

(a)  Part 3, or

(b)  section 25 of the Children (Care and Protection) Act 1987,

      or an offence of attempting, or of conspiracy or incitement, to commit such an offence (but does not include any offence exempted from this section by the regulations).

405G   (Repealed)

405H   Warning to jury

(1)  In any criminal proceedings in which the evidence of a child is given by means of closed-circuit television facilities, the Judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities.

(2)  In any criminal proceedings in which alternative arrangements for the giving of evidence by a child are directed to be made under section 405F, the Judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements.

405I   Validity of proceedings not affected

The failure of a child to give evidence in accordance with an order made under section 405D or a direction made under section 405F does not affect the validity of the proceedings or any decision made in connection with those proceedings.

Rules respecting evidence

406   Depositions by persons dangerously ill—how to be taken and when admissible in evidence

(1)  Whenever by the representation of any credible person on oath, or in case of urgency without oath, it is made to appear to any Justice that a person, able to give material information respecting an indictable offence, is dangerously ill, whereby his evidence will probably be lost if not forthwith taken, such Justice may take the deposition of the person so in danger, touching such offence, in like manner as if a prosecution for the same were then pending before such Justice, and transmit the same to the Attorney-General. And if afterwards, on the trial of any person for the offence to which the deposition relates, or for the murder or manslaughter of the deponent, in case of his death or alleged death by reason of such offence, it is proved to the satisfaction of the Judge that the witness is dead, or unable from illness to attend the trial, or to give evidence, his deposition may be read in evidence for or against the accused, although not taken in the presence or hearing either of the party prosecuting or of such accused person:

Provided always that:

(1)  Every such deposition shall be in the form, or substantially in the form, contained in the Fifth Schedule, and shall be subscribed by the Justice taking the same, of which fact, and that, such deposition was duly taken by him under this section, the deposition itself, if purporting to be signed by such Justice, shall be sufficient proof.

(2)  A copy of every such deposition shall be delivered to every person whom the same may affect criminally, as soon after the taking thereof as shall be practicable.

(3)  If practicable, every such person shall, before being committed or placed on his trial, have full opportunity afforded him, if he thinks fit, for the cross-examination of any such deponent, for which purpose any Judge or magistrate may, by any order or orders in writing, cause any person in custody to be conveyed to any place mentioned in any such order, and afterwards to be returned to that custody.

(2)  A copy of the deposition shall be forwarded by the Attorney General to the Director of Public Prosecutions.

407   (Repealed)

407AA   Compellability of spouses to give evidence in certain proceedings

(1)  In this section:

(a)  a reference to the husband or wife of an accused person includes a reference to a person living with the accused person as the husband or wife of the accused person on a bona fide domestic basis although not married to the accused person,

(b)  a reference to a domestic violence offence committed upon the husband or wife of an accused person includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order under Part 15A which was made against the accused person and in respect of which the husband or wife was the protected person,

(c)  a reference to a child assault offence is a reference to:

(i)  an offence under, or mentioned in, section 19, 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 80A, 493 or 494 committed upon a child under the age of 18 years, or

(ii)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), and

(d)  a reference to a child assault offence committed upon a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order under Part 15A which was made against the accused person and in respect of which that child was the protected person.

(2)  Except as provided in subsection (3), the husband or wife of an accused person in a criminal proceeding shall, where the offence charged is a domestic violence offence (other than an offence constituted by a negligent act or omission) committed upon that husband or wife, be compellable to give evidence in the proceeding in every Court, either for the prosecution or for the defence, and without the consent of the accused person.

(2A)  Except as provided in subsection (3), the husband or wife of an accused person in a criminal proceeding shall, where the offence charged is a child assault offence (other than an offence constituted by a negligent act or omission) committed upon:

(a)  a child living in the household of the accused person, or

(b)  a child who, although not living in the household of the accused person, is a child of the accused person and that husband or wife,

      be compellable to give evidence in the proceeding in every Court, either for the prosecution or for the defence, and without the consent of the accused person.

(3)  The husband or wife of an accused person shall not be compellable to give evidence for the prosecution as referred to in subsection (2) or (2A) if that husband or wife has applied to, and been excused by, the Judge or Justice.

(4)  A Judge or Justice may excuse the husband or wife of an accused person from giving evidence for the prosecution as referred to in subsection (2) or (2A) if satisfied that the application to be excused is made by that husband or wife freely and independently of threat or any other improper influence by any person and that:

(a)  it is relatively unimportant to the case to establish the facts in relation to which it appears that that husband or wife is to be asked to give evidence or there is other evidence available to establish those facts, and

(b)  the offence with which the accused person is charged is of a minor nature.

(5)  A Judge or Justice shall, when excusing the husband or wife of an accused person from giving evidence under subsection (4), state the reasons for so doing and cause those reasons to be recorded in writing in a form prescribed by regulations made under subsection (9).

(6)  An application under this section by the husband or wife of an accused person to be excused from giving evidence shall be made and determined in the absence of the jury (if any) and the accused person but in the presence of the legal representative (if any) of the accused person.

(7)  A Judge or Justice may conduct the hearing of an application under this section in any manner thought fit and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner thought fit.

(8)  The fact that the husband or wife of an accused person in a criminal proceeding has applied under this section to be excused, or has been excused, from giving evidence in the proceeding shall not be made the subject of any comment by the Judge or by any party in the proceeding.

(9)  The Governor may make regulations, not inconsistent with this Act, prescribing the form of a record required to be made as referred to in subsection (5).

407A   Abolition of presumption of coercion of wife by husband

(1)  Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished.

(2)  This section shall come into operation as from the date of the passing of the Crimes (Amendment) Act 1924.

408   (Repealed)

409   Depositions may be read as evidence for prosecution etc

(1)  A deposition of a witness may be read as evidence for the prosecution at the trial of the accused upon proof:

(a)  on oath that the witness is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the witness, or is absent from Australia, and

(b)  

(i)  that the deposition, if taken down in writing and purporting to be signed by the Justice or coroner by or before whom it purports to have been taken, was taken in the presence of the accused or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent, or

(ii)  where the deposition is in the form of a transcript of the record made, by any means, other than writing, authorised by law for the taking of the deposition, of the matter deposed by the witness in proceedings before a Justice or coroner, that the record so made is a true record of the matter so deposed and was made in the presence of the accused or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent and the transcript is a correct transcript of the record so made, and

(c)  that the accused, or his counsel or attorney, had a full opportunity of cross-examining the witness, or the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent when the deposition was taken and was not represented by counsel or attorney:

Provided that no such deposition as is referred to in paragraph (b) (i) shall be so read as evidence if it be proved that it was not in fact signed by the Justice or coroner purporting to sign it.

(2)  The deposition of any witness called and examined before a Justice or coroner by and on behalf of the accused may, if the accused so require, be read as evidence in his defence at the trial whenever:

(a)  the witness is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the witness, or is absent from Australia, or

(b)  the Justice or coroner who committed the accused or held him to bail has certified before the committal or holding to bail that the evidence of the witness is material, and that he is, in his belief, willing to attend the trial, but is unable to bear the expense of attendance.

Provided that no deposition may be so read upon the ground mentioned in paragraph (b) if the witness has, in due time before the trial, been subpoenaed by the Crown.

(3)  Depositions taken on the preliminary or other investigation of any charge of felony or misdemeanour, may be read as evidence on the trial of the accused for any other offence, although of a higher or different nature, if they would be admissible on his trial for the offence in respect of which they were taken; and such depositions may be proved in the same manner as if the accused were on trial for that offence.

(4)  The reference in subsection (1) to “deposition” where firstly occurring and any reference in subsections (2) and (3) to “deposition” or “depositions” shall, where the deposition or depositions was or were recorded by any means, other than writing, authorised by law for the taking of the deposition or depositions, be read and construed as a reference to a transcript, certified in the manner prescribed by regulations made under the Justices Act 1902, of the deposition or depositions as so recorded.

(5)  For the purposes of subsection (1), unless it is proved to the contrary:

(a)  a deposition, or a deposition in the form of a transcript, of the evidence of a witness shall be deemed to have been taken or made in the presence of the accused, or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent, and

(b)  the accused or his counsel or attorney shall be deemed to have had a full opportunity of cross-examining the witness, or the accused, having been discharged under section 41 (1B), shall be deemed to have been absent when the deposition was taken and not represented by counsel or attorney,

      if it appears from the deposition that it was so taken or made, and that the accused or his counsel had such an opportunity or was so absent and not represented by counsel or attorney, as the case may be.

(6)  For the purposes of subsection (1) (b) (ii), where a deposition is in the form of a transcript of the record, unless it is proved to the contrary, the record shall be deemed to be a true record of the matter deposed, and the transcript shall be deemed to be a correct transcript of the record if, in the case of a transcript of a record:

(a)  made in shorthand notes, the transcript is identified by, and signed in the handwriting of, the person purporting to have made the shorthand notes, or

(b)  made by any other means (other than writing) authorised by law for the taking of a deposition, the transcript is certified in the manner prescribed by regulations made under the Justices Act 1902.

(7)  Except in so far as the Judge otherwise orders, a prescribed statement may be read as evidence for the prosecution at the trial of the accused upon proof on oath that the person who made the statement is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the person, or is absent from Australia.

(8)  A prescribed statement may, if the accused so requires, be read as evidence in the accused’s defence at the trial of the accused whenever:

(a)  the person who made the statement is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the person, or is absent from Australia, or

(b)  the Justice who committed the accused or held the accused to bail has certified before the committal or holding to bail that the evidence of the person who made the statement is material, and that that person is, in the belief of the Justice, willing to attend the trial, but is unable to bear the expense of attendance,

      but no statement may be so read on the ground mentioned in paragraph (b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown.

(9)  A prescribed statement made in respect of any charge of felony or misdemeanour may be read as evidence on the trial of the accused for any other offence, although of a higher or different nature, if the contents of the statement would be admissible on the trial of the accused for the offence in respect of which it was made.

(10)  Where at a trial it appears to the Judge that the whole or any part of a prescribed statement is inadmissible, the Judge may reject the statement or that part, as the case may be, as evidence.

(11)  In this section, prescribed statement means:

(a)  a written statement the whole or a part of which was admitted as evidence under section 48A of the Justices Act 1902 and includes a part of any such statement rejected under section 48F of that Act, or

(b)  a written statement the whole or a part of which was tendered as evidence on a plea of guilty under section 51A of the Justices Act 1902.