Criminal Law Consolidation Act 1935



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Examples—

1 A person may (within the limits referred to above) consent to harm that has a religious purpose (eg male circumcision but not female genital mutilation).

2 A person may (within the limits referred to above) consent to harm that has a genuine therapeutic purpose (eg a person with 2 healthy kidneys may consent to donate 1 for the purpose of transplantation to someone with kidney disease).

3 A person may (within the limits referred to above) consent to harm for the purpose of controlling fertility (eg a vasectomy or tubal ligation).

4 A participant in a sporting or recreational activity may (within the limits referred to above) consent to harm arising from a risk inherent in the nature of the activity (eg a boxer may accept the risk of being knocked unconscious in the course of a boxing match and, hence, consent to that harm if it in fact ensues).

(4) If a defendant's conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm.

(5) If the defendant's conduct caused only mental harm, this Division does not apply to the defendant's conduct unless—

(a) the defendant's conduct gave rise to a situation in which the victim's life or physical safety was endangered and the mental harm arose out of that situation; or

(b) the defendant's primary purpose was to cause such harm.

Examples—

1 An examiner fails a student in an examination knowing that the student has been diagnosed with schizophrenia and that failure to pass is likely to precipitate a schizophrenic episode. The student in fact suffers such an episode.

2 An employer legally terminates an employee's employment knowing that the employee suffers from a mental illness and that the termination is likely to exacerbate the mental illness. The employee in fact suffers an exacerbation of the mental illness.

In both the above examples, it is not sufficient for the prosecution to prove that the defendant acted intentionally knowing that harm would inevitably, probably or possibly result from his or her act. It would be necessary for the prosecution to establish that the defendant wanted to cause harm and that desire was the sole or a significant motivation for the defendant's conduct.

23—Causing serious harm

(1) A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 20 years;

(b) for an aggravated offence—imprisonment for 25 years.

(2) If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.

(3) A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 19 years.

24—Causing harm

(1) A person who causes harm to another, intending to cause harm, is guilty of an offence.

Maximum penalty:

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

(b) for an aggravated offence—imprisonment for 13 years.

(2) A person who causes harm to another, and is reckless in doing so, 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.

25—Alternative verdicts

If —

(a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against this Division has been established; but



(b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and

(c) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences, has been established,

the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence.

29—Acts endangering life or creating risk of serious harm

(1) Where a person, without lawful excuse, does an act or makes an omission—

(a) knowing that the act or omission is likely to endanger the life of another; and

(b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,

that person is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 18 years.

(2) Where a person, without lawful excuse, does an act or makes an omission—

(a) knowing that the act or omission is likely to cause serious harm to another; and

(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,

that person 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.

(3) Where a person, without lawful excuse, does an act or makes an omission—

(a) knowing that the act or omission is likely to cause harm to another; and

(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,

the person 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.

(4) If a court convicting a person of an offence against this section is satisfied that the act or omission constituting the offence was done or made by the convicted person in the course of 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 5 years or such longer period as the court orders.

(5) 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.

30—Failing to provide food etc in certain circumstances

Where—

(a) a person is liable to provide necessary food, clothing or accommodation to another person who is—



(i) a minor; or

(ii) suffering from an illness; or

(iii) disabled; and

(b) the person, without lawful excuse, fails to provide that food, clothing or accommodation,

that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 3 years.

31—Possession of object with intent to kill or cause serious harm

(1) A person who, without lawful excuse, has the custody or control of an object that the person intends to use, or to cause or permit another to use—

(a) to kill, or to endanger the life of, another; or

(b) to cause serious harm to another,

shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 10 years.

(2) A person who, without lawful excuse, has the custody or control of an object that the person intends to use, or to cause or permit another to use, to cause harm to another, shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 5 years.

32—Possession of a firearm with intent to commit an offence

A person who has the custody or control of a firearm or imitation firearm for the purpose of—

(a) using, or causing or permitting another person to use, the firearm in the course of committing an offence punishable by a term of imprisonment of 2 years or more; or

(b) carrying, or causing or permitting another person to carry, the firearm when committing an offence punishable by a term of imprisonment of 2 years or more,

is guilty of an indictable offence.

Penalty: Imprisonment for 10 years.


Division 7B—Throwing objects at vehicles

32A—Throwing objects at vehicles

(1) A person must not throw a prescribed object at, or drop a prescribed object on, a vehicle that is being driven on a road or road-related area or being run on a busway, railway or tramway (whether, at the time the object is thrown or dropped, the vehicle is moving or stationary).

Maximum penalty: Imprisonment for 5 years.

(2) In this section—

prescribed object means an object of a class prescribed by the regulations for the purposes of this section;

road and road-related area have the same meanings as in the Road Traffic Act 1961;

vehicle means—

(a) a vehicle that is propelled by a motor; or

(b) a vehicle that is run on a busway, railway or tramway; or

(c) a bicycle, tricycle or other similar vehicle for which the rider provides the motive force; or

(d) a vehicle that is drawn by an animal; or

(e) an animal that is being ridden by a person.

32B—Alternative verdicts

If at the trial of a person for murder or manslaughter the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of the offence constituted by section 32A, the jury may bring in a verdict that the accused is guilty of that offence.



Division 7C—Food and beverage spiking

32C—Spiking of food or beverages

(1) A person is guilty of an offence if the person adds a substance, or causes a substance to be added, to any food or beverage intending to cause, or being recklessly indifferent as to causing, impairment of the consciousness or bodily function of another who will or might consume the food or beverage without knowledge of the presence of the substance (whether at all or in the quantity added).

Maximum penalty: Imprisonment for 3 years.

(2) A person is guilty of an offence if, between the hours of 9 pm on any day and 5 am on the following day, the person enters or remains in licensed premises while in possession of a prescription drug or controlled drug that—

(a) is such as to be capable of producing a state of intoxication in a person who consumes the drug; and

(b) is not contained in packaging on which is affixed a prescribed label indicating that the drug was lawfully prescribed for or supplied to the person.

Maximum penalty: Imprisonment for 30 months.

(3) It is a defence to a charge of an offence against subsection (2) to prove that the prescription drug or controlled drug was lawfully prescribed for or supplied to the person or that the person had some other lawful reason for being in possession of the prescription drug or controlled drug.

(4) In this section—



controlled drug has the same meaning as in the Controlled Substances Act 1984;

food or beverage includes any solid or liquid substance prepared or intended for human consumption;

licensed premises means—

(a) licensed premises within the meaning of the Liquor Licensing Act 1997, other than premises in respect of which only a restaurant licence or residential licence is in force; and

(b) the premises defined in the casino licence, within the meaning of the Casino Act 1997, as the premises to which the licence relates;

prescribed label means a label required by law to be affixed to a prescription drug or controlled drug and specifying—

(a) the name (or business name) of the person by whom the drug is sold or supplied; and

(b) the name of the person for whose use the drug is sold or supplied; and

(c) the trade name or the approved name of the drug or, if it does not have either a trade or approved name, its ingredients;



prescription drug has the same meaning as in the Controlled Substances Act 1984.

Division 8—Female genital mutilation

33—Definitions

(1) In this Division—

child means a person under 18;

female genital mutilation means—

(a) clitoridectomy; or

(b) excision of any other part of the female genital organs; or

(c) a procedure to narrow or close the vaginal opening; or

(d) any other mutilation of the female genital organs,

but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose;



sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, genital characteristics, or ostensible genital characteristics, of a male.

(2) A medical procedure has a genuine therapeutic purpose only if directed at curing or alleviating a physiological disability or physical abnormality.

33A—Prohibition of female genital mutilation

(1) A person who performs female genital mutilation is guilty of an offence.

Penalty: Imprisonment for 7 years.

(2) This section applies irrespective of whether the victim, or a parent or guardian of the victim, consents to the mutilation.

33B—Removal of child from State for genital mutilation

(1) A person must not take a child from the State, or arrange for a child to be taken from the State, with the intention of having the child subjected to female genital mutilation.

Penalty: Imprisonment for 7 years.

(2) In proceedings for an offence against subsection (1), if it is proved that—

(a) the defendant took a child, or arranged for a child to be taken from the State; and

(b) the child was subjected, while outside the State, to female genital mutilation,

it will be presumed, in the absence of proof to the contrary, that the defendant took the child, or arranged for the child to be taken, from the State (as the case may be) with the intention of having the child subjected to female genital mutilation.


Division 9—Kidnapping and unlawful child removal

38—Interpretation

In this Division—

child means a person under the age of 18 years;

detain—detention is not limited to forcible restraint but extends to any means by which a person gets another to remain in a particular place or with a particular person or persons;

take—a person takes another if the person compels, entices or persuades the other to accompany him or her or a third person.

39—Kidnapping

(1) A person who takes or detains another person, without the other person's consent—

(a) with the intention of holding the other person to ransom or as a hostage; or

(b) with the intention of committing an indictable offence against the other person or a third person,

is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 20 years;

(b) for an aggravated offence—imprisonment for 25 years.

(2) A consent to the taking or detention is to be ignored in the following cases:

(a) if the person apparently giving the consent is a child or mentally incapable of understanding the significance of the consent;

(b) if the consent was obtained by duress or deception.

40—Unlawful removal of child from jurisdiction

(1) A person who wrongfully takes or sends a child out of the jurisdiction is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 19 years.

(2) For the purposes of subsection (1), a person acts wrongfully if—

(a) the person acts in the knowledge that a person who has the lawful custody of the child (either alone or jointly with someone else) does not consent to the child being taken or sent out of the jurisdiction; and

Note—

As a general rule, the parents of a child have joint custody of the child (see Guardianship of Infants Act 1940, section 4).

(b) there is no judicial or statutory authority for the person's act.


Division 11—Rape and other sexual offences

46—Consent to sexual activity

(1) In this section—

sexual activity includes sexual intercourse.

(2) For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.

(3) Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—

(a) the person agrees because of—

(i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or

(ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or

(b) the person is unlawfully detained at the time of the activity; or

(c) the activity occurs while the person is asleep or unconscious; or

(d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or

(e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or

(f) the person is unable to understand the nature of the activity; or

(g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or

(h) the person is mistaken about the nature of the activity.

Example—

A person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene.

47—Reckless indifference

For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—

(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or

(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or

(c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.

48—Rape

(1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—

(a) does not consent to engaging in the sexual intercourse; or

(b) has withdrawn consent to the sexual intercourse,

and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).

Maximum penalty: Imprisonment for life.

(2) A person (the offender) is guilty of the offence of rape if he or she compels a person to engage, or to continue to engage, in—

(a) sexual intercourse with a person other than the offender; or

(b) an act of sexual self penetration; or

(c) an act of bestiality,

when the person so compelled does not consent to engaging in the sexual intercourse or act, or has withdrawn consent to the sexual intercourse or act, and the offender knows, or is recklessly indifferent to, the fact that the person does not so consent or has so withdrawn consent (as the case may be).

Maximum penalty: Imprisonment for life.

(3) In this section—



compels—a person compels another person if he or she controls or influences the other person's conduct by means that effectively prevent the other person from exercising freedom of choice;

sexual self penetration means the penetration by a person of the person's vagina, labia majora or anus by any part of the body of the person or by any object.

48A—Compelled sexual manipulation

(1) A person (the offender) is guilty of an offence if he or she, for a prurient purpose, compels a person to engage, or to continue to engage, in—

(a) an act of sexual manipulation of the offender; or

(b) an act of sexual manipulation of a person other than the offender; or

(c) an act of sexual self manipulation,

when the person so compelled does not consent to engaging in the act, or has withdrawn consent to the act, and the offender knows, or is recklessly indifferent to, the fact that the person does not so consent or has so withdrawn consent (as the case may be).

Maximum penalty:

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

(b) for an aggravated offence—imprisonment for 15 years.

(2) In this section—

compels—a person compels another person if he or she controls or influences the other person's conduct by means that effectively prevent the other person from exercising freedom of choice;

prurient purpose—a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else;

sexual manipulation means the manipulation by a person of another person's genitals or anus (whether or not including sexual intercourse);

sexual self manipulation means the manipulation by a person of his or her genitals or anus (whether or not including sexual self penetration, within the meaning of section 48).

49—Unlawful sexual intercourse

(1) A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.

(3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(4) It shall be a defence to a charge under subsection (3) to prove that—

(a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and

(b) the accused—

(i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or

(ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.

(5) A person who, being in a position of authority in relation to a person under the age of 18 years, has sexual intercourse with that person is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(5a) For the purposes of subsection (5), a person is in a position of authority in relation to a person under the age of 18 years (the child) if the person is—

(a) a teacher (within the meaning of the Education Act 1972) engaged in the education of the child; or

(b) a foster parent, step parent or guardian of the child; or

(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or

(d) a medical practitioner, psychologist or social worker providing professional services to the child; or

(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or

(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

(6) A person who, knowing that another is by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with that other person is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(7) Consent to sexual intercourse is not a defence to a charge of an offence under this section.

(8) This section does not apply to sexual intercourse between persons who are married to each other.

50—Persistent sexual exploitation of a child

(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

Maximum penalty: Imprisonment for life.

(2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.

(3) If—


(a) at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and

(b) the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,

the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.

(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:

(a) subject to this subsection, the information must allege with sufficient particularity—

(i) the period during which the acts of sexual exploitation allegedly occurred; and

(ii) the alleged conduct comprising the acts of sexual exploitation;

(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—

(i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or

(ii) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;

(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—

(i) in relation to the child who is allegedly the subject of the offence against this section; and

(ii) during the period during which the person is alleged to have committed the offence against this section,

must be charged in the alternative.

(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.

(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.

(7) In this section—

prescribed age, in relation to a child, means—

(a) in the case of a person who is in a position of authority in relation to the child—18 years;

(b) in any other case—17 years;

sexual offence means—

(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or

(b) an attempt to commit, or assault with intent to commit, any of those offences; or

(c) a substantially similar offence against a previous enactment.

(8) For the purposes of this section, a person is in a position of authority in relation to a child if the person is—

(a) a teacher (within the meaning of the Education Act 1972) engaged in the education of the child; or

(b) a foster parent, step parent or guardian of the child; or

(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or

(d) a medical practitioner, psychologist or social worker providing professional services to the child; or

(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or

(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

56—Indecent assault

(1) A person who indecently assaults another is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 8 years;

(b) for an aggravated offence—imprisonment for 10 years.

(2) If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.

57—Consent no defence in certain cases

(1) A person under the age of 18 years will be taken not to be capable of consenting to an indecent assault committed by a person who is in a position of authority in relation to the person.

(2) Subject to subsection (3), no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault.

(3) Where the person is between the age of sixteen and seventeen years, his or her consent shall be a defence to a charge of indecent assault if the accused proves that at the time of the indecent assault—

(a) he or she was under the age of seventeen years; or

(b) he or she believed on reasonable grounds that the person was of or above the age of seventeen years.

(4) For the purposes of subsection (1), a person is in a position of authority in relation to a person under the age of 18 years (the child) if the person is—

(a) a teacher (within the meaning of the Education Act 1972) engaged in the education of the child; or

(b) a foster parent, step parent or guardian of the child; or

(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or

(d) a medical practitioner, psychologist or social worker providing professional services to the child; or

(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or

(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

57A—Power to take plea without evidence

(1) When a person is charged with sexual intercourse with, or an indecent assault upon, a person under the age of seventeen years, the justice sitting to conduct the preliminary examination of the witnesses may, without taking any evidence, accept a plea of guilty and commit the defendant to gaol, or admit him to bail, to appear for sentence.

(2) The justice shall take written notes of any facts stated by the prosecutor as the basis of the charge and of any statement made by the defendant in contradiction or explanation of the facts stated by the prosecutor and shall forward those notes to the Director of Public Prosecutions together with any proofs of witnesses tendered by the prosecutor to the justice.

(3) The Director of Public Prosecutions shall cause the notes and proofs of witnesses to be delivered to the proper officer of the court at which the defendant is to appear for sentence before or at the opening of the court on the first sitting thereof or at such other time as the judge who is to preside in the court may order.

(4) This section does not restrict or take away any right of the defendant to withdraw a plea of guilty and substitute a plea of not guilty.

58—Acts of gross indecency

(1) Any person who, in public or in private—

(a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen years;

(b) incites or procures the commission by any such person of any act of gross indecency with the accused, or in the presence of the accused, or with any other person in the presence of the accused;

(c) is otherwise a party to the commission of any act of gross indecency by or with, or in the presence of, any such person, or by or with any other person in the presence of any such person, or by any such person with any other person in the presence of the accused,

shall be guilty of an offence and liable for a first offence to be imprisoned for a term not exceeding three years and for any subsequent offence to be imprisoned for a term not exceeding five years.

(2) It is no defence to a charge under this section that the act of indecency was committed with the consent of the person concerned.

59—Abduction of male or female person

A person who takes away by force, or detains against his will, any other person—

(a) with intent to marry, or to have sexual intercourse with, that other person; or

(b) with intent to cause that other person to be married to, or to have sexual intercourse with, a third person,

is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 14 years;

(b) for an aggravated offence—imprisonment for 18 years.

60—Procuring sexual intercourse

Any person who—

(a) by threats or intimidation, procures any person to have sexual intercourse;

(b) by false pretences, false representations or other fraudulent means, procures any person to have sexual intercourse,

is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 7 years;

(b) for an aggravated offence—imprisonment for 10 years.

61—Householder etc not to permit unlawful sexual intercourse on premises

Any person who, being the owner or occupier of any premises or having, or acting or assisting in, the management or control thereof, induces or knowingly suffers any person under the age of seventeen years to resort to, or be in, those premises for the purpose of having sexual intercourse shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.



Division 11A—Child pornography and related offences

62—Interpretation

In this Division—

child pornography means material—

(a) that—

(i) describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or

(ii) consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; and

(b) that is intended or apparently intended—

(i) to excite or gratify sexual interest; or

(ii) to excite or gratify a sadistic or other perverted interest in violence or cruelty;

disseminate—a person disseminates child pornography if the person—

(a) sends, supplies, exhibits, transmits or communicates it to another, or enters into an agreement or arrangement to do so; or

(b) makes it available for access by another (including access by means of a computer) or enters into an agreement or arrangement to do so;

material includes—

(a) any written or printed material; or

(b) any picture, painting or drawing; or

(c) any carving, sculpture, statue or figure; or

(d) any photographic, electronic or other information or data from which an image or representation may be produced or reproduced; or

(e) any film, tape, disc, or other object or system containing any such information or data;



pornographic nature of child pornography means the aspects of the material by reason of which it is pornographic;

private act means—

(a) a sexual act; or

(b) an act involving an intimate bodily function such as using a toilet; or

(c) an act or activity involving undressing to a point where the body is clothed only in undergarments; or

(d) an activity involving nudity or exposure or partial exposure of sexual organs, pubic area, buttocks or female breasts;

prurient purpose—a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else.

63—Production or dissemination of child pornography

A person who—

(a) produces, or takes any step in the production of, child pornography knowing of its pornographic nature; or

(b) disseminates, or takes any step in the dissemination of, child pornography knowing of its pornographic nature,

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.

63A—Possession of child pornography

(1) A person who—

(a) is in possession of child pornography knowing of its pornographic nature; or

(b) intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,

is guilty of an offence.

Maximum penalty:

(a) for a first offence—

(i) if it is a basic offence—imprisonment for 5 years;

(ii) if it is an aggravated offence—imprisonment for 7 years;

(b) for a subsequent offence—

(i) if it is a basic offence—imprisonment for 7 years;

(ii) if it is an aggravated offence—imprisonment for 10 years.

(2) It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant's possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.

(3) In determining whether an offence against subsection (1) is a first or subsequent offence, a court must treat a previous offence involving child pornography against any provision of this Division, or a corresponding previous enactment, as a previous offence.

63B—Procuring child to commit indecent act etc

(1) A person who—

(a) incites or procures the commission of an indecent act by a child under the prescribed age in relation to that person; or

(b) acting for a prurient purpose—

(i) causes or induces a child under the prescribed age in relation to that person to expose any part of his or her body; or

(ii) makes a photographic, electronic or other record from which the image, or images, of a child under the age of 17 years engaged in a private act may be reproduced,

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) Subsection (1) applies whether the acts alleged to constitute the offence—

(a) occur in private or in public; or

(b) occur with or without the consent of the child, or the child's parent or guardian.

(3) A person who—

(a) procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or

(b) makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,

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.

(4) It is a defence to a charge under subsection (1)(a), (1)(b)(i) or (3) (other than where the defendant was in a position of authority in relation to the child) if the defendant proves that—

(a) the child was, on the date on which the offence is alleged to have been committed, of or above the age of 16 years; and

(b) the accused—

(i) was, on the date on which the offence is alleged to have been committed, under the age of 17 years; or

(ii) believed on reasonable grounds that the child was of or above the age of 17 years.

(5) This section does not apply if the person and the child are legally married to each other.

(6) For the purposes of this section, a person is in a position of authority in relation to a child if the person is—

(a) a teacher (within the meaning of the Education Act 1972) engaged in the education of the child; or

(b) a foster parent, step parent or guardian of the child; or

(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or

(d) a medical practitioner, psychologist or social worker providing professional services to the child; or

(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or

(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

(7) For the purposes of this section, the prescribed age of a child in relation to a person is—

(a) if the person is in a position of authority in relation to the child—18 years; or

(b) in any other case—17 years.

63C—Pornographic nature of material

(1) In determining whether material to which a charge of an offence relates is of a pornographic nature, the circumstances of its production and its use or intended use may be taken into account but no such circumstance can deprive material that is inherently pornographic of that character.

(2) No offence is committed against this Division by reason of the production, dissemination or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge.

(3) No offence is committed against this Division by reason of the production, dissemination or possession of material that constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is no undue emphasis on aspects of the work that might otherwise be considered pornographic.

(4) No offence is committed against this Division by reason of—

(a) the possession or dissemination of a publication, film or computer game that has been classified under the Classification (Publications, Films and Computer Games) Act 1995 (unless it is classified as a publication for which classification is refused (RC)); or

(b) the possession of a publication, film or computer game for the purposes of obtaining a classification under that Act.



Division 12—Commercial sexual services and related offences

65A—Definitions relating to commercial sexual services

(1) For the purposes of this Division—

ask connotes a request made with serious intendment (as distinct from one made without an actual intention of obtaining the ostensible object of the request);

child means a person under the age of 18 years;

commercial sexual services means services provided for payment involving the use or display of the body of the person who provides the services for the sexual gratification of another or others;

compulsion—a person compels another (the victim) if the person controls or influences the victim's conduct by means that effectively prevent the victim from exercising freedom of choice;

payment includes any form of commercial consideration;

sexual servitude means the condition of a person who provides commercial sexual services under compulsion;

undue influence—a person exerts undue influence on another (the victim) if the person uses unfair or improper means to influence the victim's conduct.

(2) For the purposes of this Division, a person whose conduct causes a particular result is taken to have intended that result if the person is reckless about whether that result ensues.

66—Sexual servitude and related offences

(1) A person who compels another to provide or to continue to provide commercial sexual services is guilty of the offence of inflicting sexual servitude.

Maximum penalty:

(a) if the victim is a child under the age of 14 years—imprisonment for life;

(b) if the victim is a child under the age of 18 years—imprisonment for 19 years;

(c) in any other case—imprisonment for 15 years.

(2) A person who, by undue influence, gets another to provide, or to continue to provide, commercial sexual services is guilty of an offence.

Maximum penalty:

(a) if the victim is a child under the age of 14 years—imprisonment for life;

(b) if the victim is a child under the age of 18 years—imprisonment for 12 years;

(c) in any other case—imprisonment for 7 years.

(3) A person charged with an offence against subsection (1) (the aggravated offence) may be convicted, on that charge, of an offence against subsection (2) (the lesser offence) if the court is not satisfied that the aggravated offence has been established beyond reasonable doubt but is satisfied that the lesser offence has been so established.

(4) The question whether, in a particular case, a defendant's conduct amounts to compulsion or undue influence (or neither) is one of fact to be determined according to the circumstances of the particular case.

(5) Evidence of the following or any combination of the following may be relevant to that question—

(a) fraud, misrepresentation or suppression of information;

(b) force or a threat of force;

(c) any other threat (including a threat to take action that may result in the victim's deportation or a threat to take other lawful action);

(d) restrictions on freedom of movement;

(e) supply, or withdrawal of supply, of an illicit drug;

(f) abuse of a position of guardianship or trust;

(g) any other form of unreasonable or unfair pressure.

67—Deceptive recruiting for commercial sexual services

A person who—

(a) offers another (the victim) employment or some other form of engagement to provide personal services; and

(b) knows at the time of making the offer—

(i) that the victim will, in the course of or in connection with the employment or engagement, be asked or expected to provide commercial sexual services; and

(ii) that the continuation of the employment or engagement, or the victim's advancement in the employment or engagement, will be dependent on the victim's preparedness to provide commercial sexual services; and

(c) fails to disclose that information to the victim at the time of offering the employment or engagement,

is guilty of an offence.

Maximum penalty:

(a) if the victim is a child—imprisonment for 12 years;

(b) in any other case—imprisonment for 7 years.

68—Use of children in commercial sexual services

(1) A person must not employ, engage, cause or permit a child to provide, or to continue to provide, commercial sexual services.

Maximum penalty:

(a) if the child is under the age of 14 years—imprisonment for life;

(b) in any other case—imprisonment for 9 years.

(2) A person must not ask a child to provide commercial sexual services.

Maximum penalty:

(a) if the child is under the age of 14 years—imprisonment for 9 years;

(b) in any other case—imprisonment for 3 years.

(3) A person must not—

(a) have an arrangement with a child who provides commercial sexual services under which the person receives, on a regular or systematic basis, the proceeds, or a share in the proceeds, of commercial sexual services provided by the child; or

(b) exploit a child by obtaining money knowing it to be the proceeds of commercial sexual services provided by the child.

Maximum penalty:

(a) if the child is under the age of 14 years—imprisonment for 5 years;

(b) in any other case—imprisonment for 2 years.

(4) In proceedings for an offence against this section, it is not necessary for the prosecution to establish that the defendant knew the victim of the alleged offence to be a child.

(5) However, it is a defence to a charge of an offence against this section if it is proved that the defendant believed on reasonable grounds that the victim had attained 18 years of age.


Division 13—Miscellaneous sexual offences

68A—Abolition of crime of sodomy

The law relating to unnatural offences shall be as prescribed by this Act and any such offence created under any other enactment or at common law is abolished.

69—Bestiality

A person who commits bestiality is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.



Note—

Bestiality is defined in section 5.

72—Incest

(1) A person who has sexual intercourse with a close family member is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(2) It is a defence to a charge of an offence against this section for the accused to prove that he or she did not know, and could not reasonably have been expected to know, that the person was a close family member.

(3) In this section—

close family member, in relation to a person, means—

(a) a parent; or

(b) a child; or

(c) a sibling (including a half brother or half sister); or

(d) a grandparent; or

(e) a grandchild,

of the person, but does not include such a family member related to the person by marriage or adoption alone.


Division 14—Procedure in sexual offences

72A—Former time limit abolished

Any immunity from prosecution arising because of the time limit imposed by the former section 76A1 is abolished.

Note—

1 Repealed by section 5 of the Criminal Law Consolidation Act Amendment Act 1985.

73—Proof of certain matters

(1) For the purposes of this Act, sexual intercourse is sufficiently proved by proof of penetration.

(2) No person shall, by reason of his age, be presumed incapable of sexual intercourse.

(3) No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person.

(4) No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to an indecent assault by that other person.

75—Alternative verdict on charge of rape etc

If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse, or an attempt to commit rape, compelled sexual manipulation or unlawful sexual intercourse, the jury—

(a) is not satisfied that the accused is guilty of the offence charged; but

(b) is satisfied that the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the lesser offence),

the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.

76—Corroborative evidence in certain cases

No person shall be convicted of an offence under section 67 or 68 on the evidence of one witness only unless the evidence of the witness is corroborated in some material particular by evidence implicating the accused.



Division 15—Bigamy

78—Bigamy

Any person who, being married, goes through the form or ceremony of marriage with any other person during the life of his or her wife or husband shall be guilty of an offence and liable to be imprisoned for a first offence for a term not exceeding four years and for any subsequent offence for a term not exceeding ten years.

79—Defences in cases of bigamy

The provisions of section 78 do not extend to any person going through the form or ceremony of marriage as mentioned in that section—

(a) whose husband or wife has then been continuously absent from that person for the last seven years and has not been known by that person to be living within that time; or

(b) whose marriage has been dissolved or declared void by any court of competent jurisdiction.


Division 16—Abduction of children

80—Abduction of child under 16 years

(1) Any person who—

(a) unlawfully, either by force or fraud, leads, takes, decoys or entices away, or detains, any child under the age of sixteen years;

(b) harbours or receives any such child, knowing him or her to have been, by force or fraud, led, taken, decoyed or enticed away, or detained,

with intent—

(c) to deprive any parent, guardian or other person, having the lawful care of the child, of the possession of the child; or

(d) to steal any article on or about the person of the child,

shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.

(1a) Any person who unlawfully takes, or causes to be taken, a child under the age of sixteen years out of the possession and against the will of the parent, guardian or other person having the lawful care of the child shall be guilty of an offence and liable to imprisonment for a term not exceeding two years.

(2) This section does not render liable to prosecution any person who, in the exercise of any bona fide claim to the right to possession of a child, whether as the mother or father of the child or otherwise, obtains possession of the child or takes the child out of the possession of any person having the lawful charge of the child.


Division 17—Abortion

81—Attempts to procure abortion

(1) Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

(2) Any person who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her, or causes to be taken by her, any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, shall be guilty of an offence and liable to be imprisoned for life.

82—Procuring drugs etc to cause abortion

Any person who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that it is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child, shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.

82A—Medical termination of pregnancy

(1) Notwithstanding anything contained in section 81 or 82, but subject to this section, a person shall not be guilty of an offence under either of those sections—

(a) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he and one other legally qualified medical practitioner are of the opinion, formed in good faith after both have personally examined the woman—

(i) that the continuance of the pregnancy would involve greater risk to the life of the pregnant woman, or greater risk of injury to the physical or mental health of the pregnant woman, than if the pregnancy were terminated; or

(ii) that there is a substantial risk that, if the pregnancy were not terminated and the child were born to the pregnant woman, the child would suffer from such physical or mental abnormalities as to be seriously handicapped,

and where the treatment for the termination of the pregnancy is carried out in a hospital, or a hospital of a class, declared by regulation to be a prescribed hospital, or a hospital of a prescribed class, for the purposes of this section; or

(b) if the pregnancy of a woman is terminated by a legally qualified medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life, or to prevent grave injury to the physical or mental health, of the pregnant woman.

(2) Subsection (1)(a) does not refer or apply to any woman who has not resided in South Australia for a period of at least two months before the termination of her pregnancy.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the physical or mental health of a pregnant woman as is mentioned in subsection (1)(a)(i), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(4) The Governor may make regulations—

(a) for requiring any such opinion as is referred to in subsection (1) to be certified by the legally qualified medical practitioners or practitioner concerned in such form and at or within such time as may be prescribed and for requiring the preservation and disposal of any such certificate made for the purposes of this Act; and

(b) for requiring any legally qualified medical practitioner who terminates a pregnancy, and the superintendent or manager of the hospital in which the termination is carried out, to give notice of the termination and such other information relating to the termination as may be prescribed to the Director-General of Medical Services; and

(c) for prohibiting the disclosure, except to such persons or for such purposes as may be prescribed, of notices or information given pursuant to the regulations; and

(d) declaring a particular hospital or a class of hospitals to be a prescribed hospital or a prescribed class of hospitals for the purposes of this section; and

(e) for providing for, and prescribing, any penalty, not exceeding two hundred dollars, for any contravention of, or failure to comply with, any regulations.

(5) Subject to subsection (6), no person is under a duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this section to which he has a conscientious objection, but in any legal proceedings the burden of proof of conscientious objection rests on the person claiming to rely on it.

(6) Nothing in subsection (5) affects any duty to participate in treatment which is necessary to save the life, or to prevent grave injury to the physical or mental health, of a pregnant woman.

(7) The provisions of subsection (1) do not apply to, or in relation to, a person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes such a child to die before it has an existence independent of its mother where it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.

(8) For the purposes of subsection (7), evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.

(9) For the purposes of sections 81 and 82, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by this section.

(10) In this section and in sections 81 and 82—

woman means any female person of any age.


Division 18—Concealment of birth

83—Concealment of birth

(1) Any person who, by any secret disposition of the dead body of a child, whether the child died before, at or after its birth, endeavours to conceal the birth of the child shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.

(2) If on the trial of any person for the murder of a child recently born the jury is not satisfied that the accused is guilty of murder or manslaughter but is satisfied that such accused is guilty of an offence against subsection (1), it shall be lawful for the jury to return a verdict of guilty of concealment of birth and thereupon the accused shall be liable to be punished in the same manner as if convicted on an information under subsection (1).






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