Criminal Law Consolidation Act 1935


Part 1A—Territorial application of the criminal law



Download 3.07 Mb.
Page2/18
Date31.05.2016
Size3.07 Mb.
1   2   3   4   5   6   7   8   9   ...   18
Part 1A—Territorial application of the criminal law

5E—Interpretation

(1) In this Part—



necessary territorial nexus—see section 5G(2);

State includes the Northern Territory and the Australian Capital Territory;

relevant act in relation to an offence means—

(a) an act or omission that is, or causes or contributes to, an element of the offence; or

(b) an act or omission that is, or causes or contributes to, something that would, assuming the necessary territorial nexus existed, be an element of the offence; or

(c) a state of affairs that is an element of the offence, or would, assuming the necessary territorial nexus existed, be an element of the offence.

(2) The question whether the necessary territorial nexus exists in relation to an alleged offence is a question of fact to be determined, where a court sits with a jury, by the jury.

5F—Application

(1) The law of this State operates extra-territorially to the extent contemplated by this Part.

(2) However—

(a) this Part does not operate to extend the operation of a law that is expressly or by necessary implication limited in its application to this State or a particular part of this State; and

(b) this Part operates subject to any other specific provision as to the territorial application of the law of the State; and

(c) this Part is in addition to, and does not derogate from, any other law providing for the extra-territorial operation of the criminal law.1

Note—

1 For example, the Crimes at Sea Act 1998.

5G—Territorial requirements for commission of offence against a law of this State

(1) An offence against a law of this State is committed if—

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

(b) the necessary territorial nexus exists.

(2) The necessary territorial nexus exists if—

(a) a relevant act occurred wholly or partly in this State; or

(b) it is not possible to establish whether any of the relevant acts giving rise to the alleged offence occurred within or outside this State but the alleged offence caused harm or a threat of harm in this State; or

(c) although no relevant act occurred in this State—

(i) the alleged offence caused harm or a threat of harm in this State and the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred; or

(ii) the alleged offence caused harm or a threat of harm in this State and the harm, or the threat, is sufficiently serious to justify the imposition of a criminal penalty under the law of this State; or

(iii) the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred and the alleged offender was in this State when the relevant acts, or at least one of them, occurred; or

(d) the alleged offence is a conspiracy to commit, an attempt to commit, or in some other way preparatory to the commission of another offence for which the necessary territorial nexus would exist under one or more of the above paragraphs if it (the other offence) were committed as contemplated.

5H—Procedural provisions

(1) In proceedings for an offence against a law of the State, the existence of the necessary territorial nexus will be presumed and the presumption is conclusive unless rebutted under subsection (2).

(2) If a person charged with an offence disputes the existence of the necessary territorial nexus, the court will proceed with the trial of the offence in the usual way and if at the conclusion of the trial, the court is satisfied, on the balance of probabilities, that the necessary territorial nexus does not exist, it must, subject to subsection (3), make a finding to that effect and the charge will be dismissed.

(3) If the court would, disregarding territorial considerations, find the person not guilty of the offence, the court must—

(a) if the finding is based on the defendant's mental impairment—record a finding of not guilty on the ground of mental impairment; and

(b) in any other case—record a finding of not guilty.

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

(5) 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 exists).

5I—Double criminality

(1) If—


(a) an offence against the law of another State (the external offence) is committed wholly or partly in this State; and

(b) a corresponding offence (the local offence) exists under the law of this State,

an offence (an auxiliary offence) arises under the law of this State.

(2) The maximum penalty for an auxiliary offence is the maximum penalty for the external offence or the maximum penalty for the local offence (whichever is the lesser).

(3) If a person is charged with an offence (but not specifically an auxiliary offence) and the court finds that the defendant has not committed the offence as charged but has committed the relevant auxiliary offence, the court may make or return a finding that the defendant is guilty of the auxiliary offence.

Part 2—Treason

6—Repeal

The Acts 36 George III C. 7 and 57 George III C. 6 of the Imperial Parliament, except those provisions which relate to the compassing, imagining, inventing, devising or intending of the death or destruction, or any bodily harm tending to the death or destruction, maiming or wounding, imprisonment or restraint, of the person of Her Majesty, and the expressing, uttering or declaring of such compassings, imaginations, inventions, devices or intentions, are repealed.

7—Treason

Any person who compasses, imagines, invents, devises or intends—

(a) to deprive or depose Her Majesty 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

(b) to levy war against Her Majesty within any part of the United Kingdom or any other of Her Majesty's dominions in order—

(i) by force or constraint, to compel Her to change Her measures or counsels; or

(ii) to put any force or constraint on, or to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom or the Parliament of this State; or

(c) 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,

and expresses, utters or declares such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be guilty of an offence and liable to be imprisoned for life or for a term of not less than six months.

8—Time within which prosecution shall be commenced and warrant issued

(1) No person shall be prosecuted under section 7 in respect of any compassings, imaginations, inventions, devices or intentions which are expressed, uttered or declared by open and advised speaking only, unless—

(a) information of the compassings, imaginations, inventions, devices or intentions and of the words by which they were expressed, uttered or declared is given on oath to a justice within six days after the words were spoken; and

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

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

9—In informations more than one overt act may be charged

(1) It shall be lawful in any information under section 7 to charge against the offender any number of the matters, acts or deeds by which the compassings, imaginations, inventions, devices or intentions were expressed, uttered or declared.

(2) If the facts or matters alleged in an information under section 7 amount in law to treason, the information shall not for that reason be deemed void, erroneous or defective and, if the facts or matters proved on the trial of any person so informed against amount in law to treason, the accused person shall not for that reason be entitled to be acquitted of the offence charged, but no person tried for that offence shall be afterwards prosecuted for treason on the same facts.

10—Nothing herein to affect 25 Edward III Stat. 5, c. 2

The provisions of this Part shall not lessen the force of, or in any manner 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".

10A—Penalty for treason

Any person who is convicted of treason shall be imprisoned for life.

Part 3—Offences against the person

Division 1—Homicide

11—Murder

Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.

12—Conspiring or soliciting to commit murder

Any person who—

(a) conspires, confederates and agrees with any other person to murder any person, whether he is a subject of Her Majesty or not and whether he is within the Queen's dominions or not;

(b) solicits, encourages, persuades or endeavours to persuade, or proposes to, any person to murder any other person, whether he is a subject of Her Majesty or not and whether he is within the Queen's dominions or not,

shall be guilty of an offence and liable to be imprisoned for life.

12A—Causing death by an intentional act of violence

A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion1), and thus causes the death of another, is guilty of murder.

Note—

1 ie an offence against section 81(2).

13—Manslaughter

(1) Any person who is convicted of manslaughter shall be liable to be imprisoned for life or to pay such fine as the court awards or to both such imprisonment and fine.

(2) If a court convicting a person of manslaughter is satisfied that the victim's death was caused by the convicted person's use of a motor vehicle, the court must order that the person be disqualified from holding or obtaining a driver's licence for 10 years or such longer period as the court orders.

(3) Where a convicted person is disqualified from holding or obtaining a driver's licence—

(a) the disqualification operates to cancel any driver's licence held by the convicted person as at the commencement of the period of disqualification; and

(b) the disqualification may not be reduced or mitigated in any way or be substituted by any other penalty or sentence.

13A—Criminal liability in relation to suicide

(1) It is not an offence to commit or attempt to commit suicide.

(2) Notwithstanding the provisions of subsection (1), a person who finds another committing or about to commit an act which he believes on reasonable grounds would, if committed or completed, result in suicide is justified in using reasonable force to prevent the commission or completion of the act.

(3) If on the trial of a person for the murder of another the jury is satisfied that the accused killed the other, or was a party to the other being killed by a third person, but is further satisfied that the acts or omissions alleged against the accused were done or made in pursuance of a suicide pact with the person killed, then, subject to subsection (11), the jury shall not find the accused guilty of murder but may bring in a verdict of manslaughter.

(4) The killing of another or an attempt to kill another in pursuance of a suicide pact shall, for the purposes of determining the criminal liability of a person who was a party to the killing or attempt but not a party to the suicide pact, be regarded as murder or attempted murder, as the case may require.

(5) A person who aids, abets or counsels the suicide of another, or an attempt by another to commit suicide, shall be guilty of an indictable offence.

(6) The penalty for an offence against subsection (5) shall be—

(a) subject to paragraph (b)—

(i) where suicide was committed—imprisonment for a term not exceeding fourteen years;

(ii) where suicide was attempted—imprisonment for a term not exceeding eight years;

(b) where the convicted person committed the offence in pursuance of a suicide pact and—

(i) suicide was committed—imprisonment for a term not exceeding five years;

(ii) suicide was attempted—imprisonment for a term not exceeding two years.

(7) A person who, by fraud, duress or undue influence, procures the suicide of another or an attempt by another to commit suicide shall (whether or not he was a party to a suicide pact with the other person) be guilty of murder or attempted murder, as the case may require.

(8) If on the trial of a person for murder or attempted murder the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that he is guilty of an offence against subsection (5), the jury may bring in a verdict that he is guilty of an offence against that subsection.

(9) In any criminal proceedings in which it is material to establish the existence of a suicide pact and whether an act was done, or an omission made, in pursuance of the pact, the onus of proving the existence of the pact and that the act was done, or the omission made, in pursuance of the pact shall lie on the accused.

(10) For the purposes of this section—

(a) suicide pact means an agreement between two or more persons having for its object the death of all of them whether or not each is to take his own life; and

(b) nothing done or omitted to be done by a person who enters into a suicide pact shall be treated as done or omitted to be done in pursuance of the pact unless it is done or omitted to be done while he has the settled intention of dying in pursuance of the pact.

(11) Where a person induced another to enter into a suicide pact by means of fraud, duress or undue influence, the person is not entitled in relation to an offence against the other to any mitigation of criminal liability or penalty under this section based on the existence of the pact.



Division 1A—Criminal neglect

14—Criminal liability for neglect where death or serious harm results from unlawful act

(1) A person (the defendant) is guilty of the offence of criminal neglect if—

(a) a child or a vulnerable adult (the victim) dies or suffers serious harm as a result of an unlawful act; and

(b) the defendant had, at the time of the act, a duty of care to the victim; and

(c) the defendant was, or ought to have been, aware that there was an appreciable risk that serious harm would be caused to the victim by the unlawful act; and

(d) the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant's failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.

Maximum penalty:

(a) where the victim dies—imprisonment for 15 years; or

(b) where the victim suffers serious harm—imprisonment for 5 years.

(2) If a jury considering a charge of criminal neglect against a defendant finds that—

(a) there is reasonable doubt as to the identity of the person who committed the unlawful act that caused the victim's death or serious harm; but

(b) the unlawful act can only have been the act of the defendant or some other person who, on the evidence, may have committed the unlawful act,

the jury may find the defendant guilty of the charge of criminal neglect even though of the opinion that the unlawful act may have been the act of the defendant.

(3) For the purposes of this section, the defendant has a duty of care to the victim if the defendant is a parent or guardian of the victim or has assumed responsibility for the victim's care.

(4) In this section—



act includes—-

(a) an omission; and

(b) a course of conduct;

child means a person under 16 years of age;

serious harm means—

(a) harm that endangers, or is likely to endanger, a person's life; or

(b) harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or

(c) harm that consists of, or is likely to result in, serious disfigurement;



unlawful—an act is unlawful if it—

(a) constitutes an offence; or

(b) would constitute an offence if committed by an adult of full legal capacity;

vulnerable adult means a person aged 16 years or above whose ability to protect himself or herself from an unlawful act is significantly impaired through physical or mental disability, illness or infirmity.


Division 2—Defence of life and property

15—Self defence

(1) It is a defence to a charge of an offence if—

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and

(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.

(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but

(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2

(3) For the purposes of this section, a person acts for a defensive purpose if the person acts—

(a) in self defence or in defence of another; or

(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.

(4) However, if a person—

(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or

(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,

the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.

(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.



Notes—

1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.

2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.

15A—Defence of property etc

(1) It is a defence to a charge of an offence if—

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—

(i) to protect property from unlawful appropriation, destruction, damage or interference; or

(ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or

(iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and

(b) if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and

(c) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.

(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—

(i) to protect property from unlawful appropriation, destruction, damage or interference; or

(ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or

(iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and

(b) the defendant did not intend to cause death; but

(c) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2

(3) For the purposes of this section, a person commits a criminal trespass if the person trespasses on land or premises—

(a) with the intention of committing an offence against a person or property (or both); or

(b) in circumstances where the trespass itself constitutes an offence or is an element of the offence.

(4) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.



Notes—

1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.

2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.

15B—Reasonable proportionality

A requirement under this Division that the defendant's conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.

15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion

(1) This section applies where—

(a) a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and

(b) the victim was not a police officer acting in the course of his or her duties.

(2) In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—

(a) the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and

(b) the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and

(c) the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.

(3) In this section—



criminal misconduct means conduct constituting an offence for which a penalty of imprisonment is prescribed;

drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;

home invasion means a serious criminal trespass committed in a place of residence;

non-therapeutic—consumption of a drug is to be considered non-therapeutic unless—

(a) the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or

(b) the drug is of a kind available, without prescription, from registered pharmacists, and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions;

relevant defence means a defence under section 15(1) or section 15A(1).


Division 3—Miscellaneous

16—Petit treason

Every offence which, before the commencement of the Act 9 George IV C. 31 of the Imperial Parliament, would have amounted to petit treason shall be deemed to be murder only, and no greater offence, and shall be punishable accordingly.

18—Abolition of year-and-a-day rule

An act or omission that in fact causes death will be regarded in law as the cause of death even though the death occurs more than a year and a day after the act or omission.


Division 4—Unlawful threats

19—Unlawful threats

(1) A person who—

(a) threatens, without lawful excuse, to kill or endanger the life of another; and

(b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,

is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 10 years;

(b) for an aggravated offence—imprisonment for 12 years.

(2) A person who—

(a) threatens, without lawful excuse, to cause harm to another; and

(b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,

is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 5 years;

(b) for an aggravated offence—imprisonment for 7 years.

(3) This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct.

(4) In this section—



harm, in relation to a person, has the same meaning as in section 21.

Division 5—Stalking

19AA—Unlawful stalking

(1) A person stalks another if—

(a) on at least two separate occasions, the person—

(i) follows the other person; or

(ii) loiters outside the place of residence of the other person or some other place frequented by the other person; or

(iii) enters or interferes with property in the possession of the other person; or

(iv) gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or

(iva) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or

(ivb) communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or

(v) keeps the other person under surveillance; or

(vi) acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear; and

(b) the person—

(i) intends to cause serious physical or mental harm to the other person or a third person; or

(ii) intends to cause serious apprehension or fear.

(2) A person who stalks another is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 3 years;

(b) for an aggravated offence—imprisonment for 5 years.

(3) A person who is charged with stalking is (subject to any exclusion in the instrument of charge) to be taken to have been charged in the alternative with offensive behaviour1 so that if the court is not satisfied that the charge of stalking has been established but is satisfied that the charge of offensive behaviour has been established, the court may convict the person of offensive behaviour.

(4) A person who has been acquitted or convicted on a charge of stalking may not be convicted of another offence arising out of the same set of circumstances and involving a physical element that is common to that charge.

(5) A person who has been acquitted or convicted on a charge of an offence other than stalking may not be convicted of stalking if the charge of stalking arises out of the same set of circumstances and involves a physical element that is common to the charge of that other offence.

(6) For the purposes of this section, the circumstances of a dealing with material may be taken into account in determining whether the material was offensive material but, if material was inherently offensive material, the circumstances of a dealing with the material cannot be taken to have deprived it of that character.




Share with your friends:
1   2   3   4   5   6   7   8   9   ...   18




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page