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Criminal Code 2007 (NI)

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Act No. 11 of 2007
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015) as amended up to Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021 (F2021L00975)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Transport, Cities and Regional Development
Registered 08 Nov 2021
Start Date 10 Jul 2021

 

NORFOLK                            ISLAND

 

Criminal Code 2007

No. 11, 2007

Compilation No. 7

Compilation date:                              10 July 2021

Includes amendments up to:            Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015) as amended up to Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021 (F2021L00975)


 

 

 

NORFOLK                            ISLAND

 

 

Criminal Code 2007

 

Contents

                                                                                                                                                                                      

CHAPTER 1  ¾  PRELIMINARY

1               Name of Act and commencement

3               Dictionary

4               Notes and examples

CHAPTER 2  ¾  GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

PART 2.1  ¾  PURPOSE AND APPLICATION—CHAPTER 2

6                    Purpose—chapter 2

7                    Application—chapter 2

8                    Certain provisions of this Chapter do not apply to certain pre‑2008 offences

10                  Definition of applied provisions

PART 2.2  ¾  THE ELEMENTS OF AN OFFENCE

Division 2.2.1        General—Part 2.2

11                  Elements

12                  Establishing guilt of offences

Division 2.2.2  ¾  Physical Elements

13                  Definitions—conduct and engage in conduct

14                  Physical elements

15                  Voluntariness

16                  Omissions

Division 2.2.3  ¾  Fault Elements

17             Fault elements

18             Intention

19             Knowledge

20             Recklessness

21             Negligence

22                  Offences that do not provide fault elements

Division 2.2.4  ¾  Cases Where Fault Elements Are Not Required

23             Strict liability

24             Absolute liability

PART 2.3  ¾  CIRCUMSTANCES WHERE THERE IS NO CRIMINAL RESPONSIBILITY

Division 2.3.1        Lack of capacity—children

25                  Children under 10

26                  Children 10 and over but under 14

Division 2.3.2        Lack of capacity—mental impairment

27                  Definition—mental impairment

28                  Mental impairment and criminal responsibility

29                  Mental impairment and other defences

Division 2.3.3        Intoxication

30                  Intoxication—interpretation

31                  Intoxication—offences involving basic intent

32                  Intoxication—negligence as fault element

33                  Intoxication—relevance to defences

34                  Involuntary intoxication

Division 2.3.4  ¾  Mistake and ignorance

35                  Mistake or ignorance of fact—fault elements other than negligence

36                  Mistake of fact—strict liability

37                  Mistake or ignorance of law creating offence

38                  Claim of right

Division 2.3.5  ¾  External factors

39                  Intervening conduct or event

40                  Duress

41                  Sudden or extraordinary emergency

42                  Self-defence

43                  Lawful authority

PART 2.4  ¾  EXTENSIONS OF CRIMINAL RESPONSIBILITY

44                  Attempt

45                  Complicity and common purpose

46                  Agency

47                  Incitement

48                  Conspiracy

PART 2.5  ¾  CORPORATE CRIMINAL RESPONSIBILITY

49                  General principles

50                  Physical elements

51                  Corporation—fault elements other than negligence

52                  Corporation—negligence

53                  Corporation—mistake of fact—strict liability

54                  Corporation—intervening conduct or event

55                  Evidence of negligence or failure to exercise appropriate diligence

PART 2.6  ¾  PROOF OF CRIMINAL RESPONSIBILITY

56                  Legal burden of proof—prosecution

57                  Standard of proof—prosecution

58                  Evidential burden of proof—defence

59                  Legal burden of proof—defence

60                  Standard of proof—defence

61                  Use of averments

PART 2.7             GEOGRAPHICAL APPLICATION

62                  Application and effect—Part 2.7

63                  Interpretation—Part 2.7

64                  Extension of offences if required geographical nexus exists

65                  Geographical application—double criminality

66                  Geographical application—procedure

67                  Geographical application—suspicion etc that offence committed

CHAPTER 3  ¾  OFFENCES AGAINST THE PERSON

PART 3.1             UNLAWFUL KILLING

68                  When child born alive

69                  No time limit on criminal responsibility for homicide

70                  Murder

71                  Trial for murder—provocation

72                  Trial for murder—diminished responsibility

73                  Manslaughter

PART 3.2  ¾  SUICIDE

74             Suicide, etc—not an offence

75             Suicide—aiding, etc

76             Prevention of suicide

PART 3.3  ¾  OFFENCES ENDANGERING LIFE AND HEALTH

77                  Intentionally inflicting grievous bodily harm

78                  Recklessly inflicting grievous bodily harm

79                  Wounding

80                  Assault with intent to commit certain indictable offences

81                  Inflicting actual bodily harm

82                  Assault occasioning actual bodily harm

83                  Causing grievous bodily harm

84                  Common assault

86                  Acts endangering life, etc

87                  Acts endangering health, etc

88                  Culpable driving of motor vehicle

89                  Threat to kill

90                  Threat to inflict grievous bodily harm

91                  Demands accompanied by threats

92                  Possession of object with intent to kill, etc

93                  Forcible confinement

94             Stalking

95             Torture

96             Abduction of young person

97             Kidnapping

PART 3.4  ¾  OFFENCES CONCERNING CHILDREN

98                  Neglect, etc of children

99                  Unlawfully taking child, etc

100               Exposing or abandoning child

101               Child destruction

102               Childbirth—grievous bodily harm

103               Concealment of birth

PART 3.5  ¾  MISCELLANEOUS OFFENCES

104               Misconduct with regard to corpses

105               Aggravated offences—offences against pregnant women

106               Alternative verdicts for aggravated offences—offences against pregnant women

107               Alternative verdicts for certain other offences against the person

PART 3.6  ¾  SEXUAL OFFENCES

108               Meaning of sexual intercourse in this Part

108A            Meaning of act of indecency in this Part

109               Sexual assault in the first degree

110               Sexual assault in the second degree

111               Sexual assault in the third degree

112               Sexual intercourse without consent

113               Sexual intercourse with young person

113A            Sexual intercourse with person aged at least 16 but under 18—defendant in position of trust or authority

114               Maintaining a sexual relationship with young person

115               Act of indecency in the first degree

116               Act of indecency in the second degree

117               Act of indecency in the third degree

118               Act of indecency without consent

119               Acts of indecency with young people

119A            Act of indecency with person aged at least 16 but under 18—defendant in position of trust or authority

120               Incest and similar offences

121               Abduction

121A            Procuring a young person for a child sex offence

121B            Grooming a person for a child sex offence

121C            Definitions for procuring and grooming offences

PART 3.7  ¾  CHILD PORNOGRAPHY

122               Using child for production of child pornography etc

123               Trading in child pornography

124               Possessing child pornography

125               Using the Internet, etc to deprave young people

126               Consent

PART 3.8  ¾  MISCELLANEOUS PROVISIONS FOR PART 3

127               Sexual intercourse—people not to be presumed incapable by reason of age

128               Marriage no bar to conviction

129               Alternative verdicts for certain sexual offences

130               Adding count for act of indecency

131               Indictment for act of indecency

PART 3.9  ¾  FEMALE GENITAL MUTILATION

132               Meaning of female genital mutilation for Part 3.9

133               Prohibition of female genital mutilation

134               Removal of child from Norfolk Island for genital mutilation

135               Exception—medical procedures for genuine therapeutic purposes

136               Exception—sexual reassignment procedures

PART 3.10  ¾  SEXUAL SERVITUDE

137               Meaning of sexual servitude and sexual services for Part 3.10

138               Sexual servitude offences

139               Deceptive recruiting for sexual services

140               Increased penalty for aggravated offences

141               Alternative verdict if aggravated offence not proven

PART 3.11  ¾  OFFENCES RELATING TO PROPERTY

Division 3.11.1      Money laundering and organised fraud

142               Definitions for Division 3.11.1

143               Money laundering

144               Possession etc of property suspected of being proceeds of crime

145               Organised fraud

Division 3.11.2      Criminal damage to property

146               Interpretation for Division 3.10.2

147               Destroying or damaging property

148               Arson

149               Defacing premises

150               Untrue representations

151               Alternative verdict

Division 3.11.3  ¾  Contamination of goods and related offences

152               Definitions of contaminate and goods

153               Meaning of economic loss

154               Contaminating goods with intent to cause public alarm or economic loss

155               Threatening to contaminate goods with intent to cause public alarm or economic loss

156               Making false statements about contamination of goods with intent to cause public alarm or economic loss

157               Territorial nexus for offences

Division 3.11.4      Offences relating to causing public alarm

158               Acting with intent to cause public alarm

159               Threatening to act with intent to cause public alarm

160               Making false statements with intent to cause public alarm

161               Territorial nexus for offences

Division 3.11.5      Miscellaneous

162               Removal of sea banks, etc

163               Displaying false signals

164               Removing or concealing buoys, etc

165               Forcible entry on land

166               Forcible detainer of land

167               Disclosure of information by public employees

168               Additional offences on government premises

PART 3.12  ¾  ESCAPE PROVISIONS

169               Meaning of lawful custody—periodic detention

170               Aiding prisoner to escape

171               Escaping

172               Rescuing a prisoner from custody etc

173               Person unlawfully at large

174               Permitting escape

175               Harbouring, etc escapee

176               Failure to answer bail, etc—offence

CHAPTER 4  ¾  THEFT, FRAUD, BRIBERY AND RELATED OFFENCES

PART 4.1  ¾  INTERPRETATION FOR CHAPTER 4

177               Definitions—chapter 4

178               Person to whom property belongs for chapter 4

179               Dishonesty a matter for trier of fact

PART 4.2  ¾  THEFT AND RELATED OFFENCES

Division 4.2.1        Interpretation for Part 4.2

180               Dishonesty for Part 4.2

181               Appropriation of property for Part 4.2

182               Person to whom property belongs for Part 4.2

183               Intention of permanently depriving for Part 4.2

184               General deficiency

Division 4.2.2  ¾  Indictable offences for Part 4.2

185               Theft

186               Robbery

187               Aggravated robbery

188               Burglary

189               Aggravated burglary

190               Receiving

191               Receiving—meaning of stolen property

192               Going equipped for theft, etc

193               Going equipped with offensive weapon for theft, etc

194               Making off without payment

195               Taking, etc motor vehicle without consent

196               Dishonestly taking Administration property

197               Dishonestly retaining Administration property

Division 4.2.3  ¾  Summary offences for Part 4.2

198               Minor theft

199               Removal of articles on public exhibition

200               Making off without payment—minor offence

201               Unlawful possession of stolen property

PART 4.3  ¾  FRAUDULENT CONDUCT

Division 4.3.1        Interpretation for Part 4.3

202               Definitions—Part 4.3

Division 4.3.2        Obtaining property by deception

203               Obtaining property by deception

204               Dishonesty for Division 4.3.2

205               Meaning of obtains for Division 4.3.2

206               Intention of permanently depriving—Division 4.3.2

207               Money transfers

208               General deficiency for Division 4.3.2

Division 4.3.3  ¾  Other indictable offences for Part 4.3

209               Obtaining financial advantage by deception

210               General dishonesty

211               Conspiracy to defraud

Division 4.3.4        Summary offences for Part 4.3

212               Obtaining financial advantage from the Administration

213               Passing valueless cheques

PART 4.4  ¾  FALSE OR MISLEADING STATEMENTS, INFORMATION AND DOCUMENTS

214               Making false statements on oath or in statutory declarations

215               Making false or misleading statements

216               Giving false or misleading information

217               Producing false or misleading documents

PART 4.5  ¾  BLACKMAIL

218               Meaning of menace for Part 4.5

219               Meaning of unwarranted demand with a menace for Part 4.5

220               Blackmail

PART 4.6  ¾  FORGERY AND RELATED OFFENCES

Division 4.6.1        Interpretation for Part 4.6

221            Definitions—Part 4.6

222               Meaning of false document, etc for Part 4.6

223               Inducing acceptance that document genuine

Division 4.6.2        Offences for Part 4.6

224            Forgery

225            Using false document

226            Possessing false document

227               Making or possessing device, etc for making false document

228               False accounting

229               False statement by officer of body

PART 4.7  ¾  BRIBERY AND RELATED OFFENCES

Division 4.7.1        Interpretation for Part 4.7

230               Definitions—Part 4.7

231               Meaning of agent and principal for Part 4.7

232               Dishonesty for Part 4.7

233               Meaning of obtain for Part 4.7

Division 4.7.2        Offences for Part 4.7

234               Bribery

235               Other corrupting benefits

236               Payola

237               Abuse of public office

PART 4.8  ¾  IMPERSONATION OR OBSTRUCTION OF PUBLIC OFFICIALS

Division 4.8.1        Indictable offences for Part 4.8

238               Impersonating public official

239               Obstructing public official

Division 4.8.2        Summary offences for Part 4.8

240               Impersonating police officer

241               Obstructing public official

PART 4.9  ¾  PROCEDURAL MATTERS FOR CHAPTER 4

Division 4.9.1        General—Part 4.9

242               Stolen property held by dealers, etc—owners rights

243               Stolen property held by police—disposal

244               Procedure and evidence—theft, receiving, etc

245               Certain proceedings not to be heard together

246               Indictment for offence relating to deeds, money etc

247               Theft of motor vehicle—cancellation of licence

Division 4.9.2  ¾  Alternative verdicts—Chapter 4

248               Alternative verdicts—theft and taking motor vehicle without consent

249               Alternative verdicts—theft or obtaining property by deception and receiving

250               Alternative verdicts—theft and obtaining property by deception

251               Verdict of “theft or receiving” etc

252               Alternative verdicts—making false or misleading statements

Division 4.9.3  ¾  Forfeiture—Chapter 4

253               Going equipped offences—forfeiture

254               Unlawful possession offence—forfeiture

255               Forgery offences—forfeiture

CHAPTER 5  ¾  PROPERTY DAMAGE AND COMPUTER OFFENCES

PART 5.1  ¾  PROPERTY DAMAGE OFFENCES

Division 5.1.1  ¾  Interpretation for Part 5.1

256               Definitions—Part 5.1

257               Person to whom property belongs

258               Meaning of threat for Part 5.1

Division 5.1.2        Offences—Part 5.1

259               Damaging property

260               Arson

261               Causing bushfires

262               Threat to cause property damage—fear of death or serious harm

263               Threat to cause property damage

264               Possession of thing with intent to damage property

Division 5.1.3        Defences—Part 5.1

265               Consent—Part 5.1 offences

266               Claim of right—Part 5.1 offences

267               Self-defence

PART 5.2  ¾  COMPUTER OFFENCES

268               Definitions—Part 5.2

269               Limited meaning of access to data, etc

270               Meaning of unauthorised access, modification or impairment

271               Unauthorised access, modification or impairment with intent to commit serious offence

272               Unauthorised modification of data to cause impairment

273               Unauthorised impairment of electronic communication

274               Possession of data with intent to commit serious computer offence

275               Producing, supplying or obtaining data with intent to commit serious computer offence

276               Unauthorised access to or modification of restricted data held in computer

277               Unauthorised impairment of data held in computer disc, credit card, etc

PART 5.3  ¾  SABOTAGE

278               Definitions—Part 5.3

279               Sabotage

280               Threaten sabotage

CHAPTER 6  ¾  SERIOUS DRUG OFFENCES

PART 6.1  ¾  INTERPRETATION FOR CHAPTER 6

281               Definitions—chapter 6

282               Meaning of trafficable quantity, commercial quantity and large commercial quantity

PART 6.2  ¾  TRAFFICKING IN CONTROLLED DRUGS

283            Meaning of trafficking

284               Trafficking in controlled drug

285               Trafficking offence—presumption if trafficable quantity possessed etc

286               Complicity, incitement and conspiracy offences do not apply to buyers of drugs

PART 6.3  ¾  MANUFACTURING CONTROLLED DRUGS AND PRECURSORS

287            Meaning of manufacture

288               Manufacturing controlled drug for selling

289               Manufacturing offence—presumption if trafficable quantity manufactured

290               Manufacturing controlled drug

291               Selling controlled precursor for manufacture of controlled drug

292               Manufacturing controlled precursor for manufacture of controlled drug

293               Possessing controlled precursor

294               Supplying substance, equipment or instructions for manufacturing controlled drug

295               Possessing substance, equipment or instructions for manufacturing controlled drug

PART 6.4  ¾  CULTIVATING CONTROLLED PLANTS

296            Meaning of cultivate

297               Cultivating controlled plant for selling

298               Cultivating offence—presumption if trafficable quantity cultivated

299               Cultivating controlled plant

300               Selling controlled plant

301               Supplying plant material, equipment or instructions for cultivating controlled plant

302               Possessing plant material, equipment or instructions for cultivating controlled plant

PART 6.4A  ¾    USE OF DRUGS

302A            Use of controlled drugs or hallucinogenic substances

PART 6.5  ¾  DRUG OFFENCES INVOLVING CHILDREN

303               Supplying controlled drug to child for selling

304               Supplying offence—presumption if trafficable quantity supplied, etc

305               Procuring child to traffic in controlled drug

306               Supplying controlled drug to child

307               Children not criminally responsible for offences against Part 7.5

PART 6.6  ¾  GENERAL PROVISIONS FOR DRUG OFFENCES

308            Application—Part 6.6

309               Carrying on business of trafficking

310               Single offence for trafficking, etc on different occasions

311               Single offence for different parcels trafficked, etc on the same occasion

312               Single offence—working out quantities if different kinds of controlled drug, etc involved

313               Knowledge or recklessness about identity of controlled drugs, plants and precursors

314               Alternative verdicts—mistaken belief about identity of controlled drug, precursor or plant

315               Alternative verdicts—mistaken belief about quantity of controlled drug, precursor or plant

316               Alternative verdicts—different quantities

317               Alternative verdicts—trafficking and obtaining property by deception

317A            Defences for hallucinogenic substances

317B            Certificate of evidence

PART 6.7  ¾  OFFENCES RELATING TO PROPERTY DERIVED FROM DRUG OFFENCES

318            Meaning of drug offence

319               Property directly or indirectly derived from drug offence

320               Concealing, etc property derived from drug offence

321               Receiving property directly derived from drug offence

PART 6.8  ¾  APPLICATION OF CHAPTER 6

322               Uncertainty about when conduct engaged in

CHAPTER 7  ¾  ADMINISTRATION OF JUSTICE OFFENCES

PART 7.1  ¾  INTERPRETATION FOR CHAPTER 7

323            Definitions—chapter 7

324               Meaning of legal proceeding for chapter 7

PART 7.2  ¾  INDICTABLE OFFENCES FOR CHAPTER 7

Division 7.2.1  ¾  Perjury

325               Aggravated perjury

326               Perjury

327               Additional provisions about perjury or aggravated perjury

Division 7.2.2  ¾  Falsifying, destroying or concealing evidence

328               Making or using false evidence

329               Destroying or concealing evidence

Division 7.2.3  ¾  Protection Of People Involved In Legal Proceedings

330               Corruption in relation to legal proceedings

331               Deceiving witness, interpreter or juror

332               Threatening, etc witness, interpreter or juror

333               Preventing attendance, etc of witness, interpreter or juror

334               Preventing production of thing in evidence

335               Reprisal against person involved in proceeding

Division 7.2.4        Perverting the course of justice and related offences

336               Perverting the course of justice

337               Publication that could cause miscarriage of justice

338            False accusation of offence

339            Compounding of offence

340            Accessory after the fact

PART 7.3  ¾  SUMMARY OFFENCES FOR CHAPTER 7

341               Pleading guilty in another’s name

342               Failing to attend

343               Failing to produce document or other thing

344               Failing to take oath

345               Failing to answer question or give information

346               Making, etc false or misleading statements in legal proceeding

347               Obstructing, etc legal proceeding

348               Obstructing or hindering investigation

PART 7.4  ¾  PROCEDURAL MATTERS FOR CHAPTER 7

349               Consent required for certain prosecutions

350               Alternative verdicts—aggravated perjury and perjury

351               Alternative verdicts—perverting the course of justice and publication that could cause miscarriage of justice

CHAPTER 8  ¾  OFFENCES PUNISHABLE SUMMARILY AND SUMMARY PROCEDURE GENERALLY

352            Summary offences

353               Summary disposal of certain cases

354               Saving of other summary jurisdiction

355               Certificate of dismissal

356               Summary conviction or dismissal bar to indictment

357               Misbehaviour at public meetings

358               Possession of offensive weapons and disabling substances

359               Possession of offensive weapons and disabling substances with intent

360               Possession of knife in public place or school

361               Sale of knife to person under 16

362               Retail supplier of knives to display sign

363            Laying of poison

364            Making false invoice

365            Application of compensation

366            Entrance to cellars, etc

367            Fighting

368            Offensive behaviour

369            Indecent exposure

370            Bogus advertisements

371            Public mischief

372               Apprehended violence or injury—recognisance to keep the peace, etc

373               Alternative methods of proceeding before magistrate

374               General averment of intent to defraud or injure

CHAPTER 9  ¾  MISCELLANEOUS

375               Joinder of charges

376               Protection of persons acting under Act

377               Power of courts to bring detainees before them

378               Witnesses neglecting to attend trial and captured under warrant may be admitted to bail

379               Offence of criminal defamation

380               Offence notices

381               Approved forms

382               Regulation-making power

Dictionary

NOTES

Table of Amendments


 

 

 

NORFOLK                         ISLAND

 

 

Criminal Code 2007

 

An Act relating to the criminal law, and for other purposes.

 

CHAPTER 1  ¾  PRELIMINARY

1    Name of Act and commencement

                  (1)        This Act is the Criminal Code 2007.

                  (2)        This Act commences on January 1 2008, unless the Administrator by notice in the Gazette notifies an earlier date for its commencement.

3    Dictionary

The dictionary at the end of this Act is part of this Act.

        Note         The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘conduct—see section 13.’ means that the expression ‘conduct’ is defined in that section.

4    Notes and examples

                  (1)          A note included in this Act is explanatory and is not part of this Act.

        Note         But notes may be used as an aid in interpretation see Interpretation Act 1979, s.10D

                  (2)        An example included in this Act is part of the Act but is not exhaustive and may extend but does not limit the meaning of the Act or the particular provision to which it relates.

CHAPTER 2  ¾  GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

PART 2.1  ¾  PURPOSE AND APPLICATION—CHAPTER 2

6    Purpose—chapter 2

                  (1)        The main purpose of this chapter is to codify general principles of criminal responsibility under Norfolk Island legislation.

                  (2)        This Chapter contains all the general principles of criminal responsibility that apply to any offence against Norfolk Island legislation, irrespective of how the offence is created.

7    Application—chapter 2

      This chapter applies to all offences against this Act and all other offences against Norfolk Island legislation.

        Note         Part 2.7 also applies to offences against applied NSW laws.

8    Certain provisions of this Chapter do not apply to certain pre‑2008 offences

                  (1)        Despite section 7, the provisions of this Chapter (other than the applied provisions) do not apply to a pre‑2008 offence unless:

                  (a)        the offence has been omitted and remade (with or without changes) on or after 1 January 2008; or

                  (b)        an enactment, or a law made under an enactment, whether made before or after the commencement of this section, expressly provides for the provisions of this Chapter to apply to the offence.

                  (2)       In interpreting the applied provisions in relation to an offence, the other provisions of this Act may be considered.

                  (3)       In this section:

omitted and remade: an offence has not been omitted and remade if it has been amended without being omitted and remade.

pre‑2008 offence means an offence that was in force before 1 January 2008.

10  Definition of applied provisions

      In this Act:

applied provisions means the following provisions of this Chapter:

                  (a)        subsection 15(5) (Evidence of self‑induced intoxication);

                  (b)        Division 2.3.1 (Lack of capacity—children);

                  (c)        Division 2.3.2 (Lack of capacity—mental impairment);

                  (d)       Division 2.3.3 (Intoxication);

                  (e)        Part 2.4 (Extensions of criminal responsibility);

                  (f)        Part 2.5 (Corporate criminal responsibility);

                  (g)        Part 2.6 (Proof of criminal responsibility);

                  (h)        Part 2.7 (Geographical application).

PART 2.2  ¾  THE ELEMENTS OF AN OFFENCE

Division 2.2.1        General—Part 2.2

11  Elements

                  (1)        An offence consists of physical elements and fault elements.

                  (2)        However, the law that creates the offence may provide that there is no fault element for some or all of the physical elements.

                  (3)        The law that creates the offence may provide different fault elements for different physical elements.

12  Establishing guilt of offences

                  (1)        A person must not be found guilty of committing an offence unless the following is proved:

                  (a)        the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt;

                  (b)        for each of the physical elements for which a fault element is required—the fault element or 1 of the fault elements for the physical element.

        Note 1      See Part 2.6 on proof of criminal responsibility.

        Note 2      See Part 2.7 on geographical jurisdiction.

                  (2)        However, unless the law creating the offence otherwise expressly provides, a person can be found guilty of committing the offence even though, when carrying out the conduct required for the offence, the person is mistaken about, or ignorant of, the existence or content of a law that creates the offence.

        Note         Create, in relation to an offence, is defined in the dictionary.

Division 2.2.2  ¾  Physical Elements

13  Definitions—conduct and engage in conduct

      In this Act:

conduct means an act, an omission to do an act or a state of affairs.

engage in conduct means—

                  (a)        do an act; or

                  (b)        omit to do an act.

14  Physical elements

      A physical element of an offence may be—

                  (a)        conduct; or

                  (b)        a result of conduct; or

                  (c)        a circumstance in which conduct, or a result of conduct, happens.

15  Voluntariness

                  (1)        Conduct can only be a physical element if it is voluntary.

                  (2)        Conduct is voluntary only if it is a product of the will of the person whose conduct it is.

Examples of conduct that is not voluntary

1              a spasm, convulsion or other unwilled bodily movement

2              an act done during sleep or unconsciousness

3              an act done during impaired consciousness depriving the person of the will to act

                  (3)        An omission to do an act is voluntary only if the act omitted is an act that the person can do.

                  (4)        If the conduct required for an offence consists only of a state of affairs, the state of affairs is voluntary only if it is a state of affairs over which the person is capable of exercising control.

                  (5)        Evidence of self-induced intoxication cannot be considered in deciding whether conduct is voluntary.

        Note         For when intoxication is self-induced, see s 30.

16  Omissions

      An omission to do an act can only be a physical element if—

                  (a)        the law creating the offence makes it a physical element; or

                  (b)        the law creating the offence impliedly provides that the offence is committed by an omission to do an act that, by law, there is a duty to do.

Division 2.2.3  ¾  Fault Elements

17  Fault elements

                  (1)        A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

                  (2)        Subsection (1) does not prevent a law that creates an offence from providing other fault elements for a physical element of the offence.

18  Intention

                  (1)        A person has intention in relation to conduct if the person means to engage in the conduct.

                  (2)        A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.

                  (3)        A person has intention in relation to a circumstance if the person believes that it exists or will exist.

19  Knowledge

      A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events.

20  Recklessness

                  (1)        A person is reckless in relation to a result if—

                  (a)        the person is aware of a substantial risk that the result will happen; and

                  (b)        having regard to the circumstances known to the person, it is unjustifiable to take the risk.

                  (2)        A person is reckless in relation to a circumstance if—

                  (a)        the person is aware of a substantial risk that the circumstance exists or will exist; and

                  (b)        having regard to the circumstances known to the person, it is unjustifiable to take the risk.

                  (3)        The question whether taking a risk is unjustifiable is a question of fact.

                  (4)        If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

21  Negligence

      A person is negligent in relation to a physical element of an offence if the person’s conduct merits criminal punishment for the offence because it involves—

                  (a)        such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

                  (b)        such a high risk that the physical element exists or will exist.

22  Offences that do not provide fault elements

                  (1)        If the law creating an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element.

                  (2)        If the law creating an offence does not provide a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for the physical element.

Division 2.2.4  ¾  Cases Where Fault Elements Are Not Required

23  Strict liability

                  (1)        If a law that creates an offence provides that the offence is a strict liability offence—

                  (a)        there are no fault elements for any of the physical elements of the offence; and

                  (b)        the defence of mistake of fact under section 36 (Mistake of fact—strict liability) is available.

                  (2)        If a law that creates an offence provides that strict liability applies to a particular physical element of the offence—

                  (a)        there are no fault elements for the physical element; and

                  (b)        the defence of mistake of fact under section 36 is available in relation to the physical element.

                  (3)        The existence of strict liability does not make any other defence unavailable.

24  Absolute liability

                  (1)        If a law that creates an offence provides that the offence is an absolute liability offence—

                  (a)        there are no fault elements for any of the physical elements of the offence; and

                  (b)        the defence of mistake of fact under section 36 (Mistake of fact—strict liability) is not available.

                  (2)        If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence—

                  (a)        there are no fault elements for the physical element; and

                  (b)        the defence of mistake of fact under section 36 is not available in relation to the physical element.

                  (3)        The existence of absolute liability does not make any other defence unavailable.

PART 2.3  ¾  CIRCUMSTANCES WHERE THERE IS NO CRIMINAL RESPONSIBILITY

Division 2.3.1        Lack of capacity—children

25  Children under 10

      A child under 10 years old is not criminally responsible for an offence.

26  Children 10 and over but under 14

                  (1)        A child aged 10 years or older, but under 14 years old, can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

                  (2)        The question whether a child knows that his or her conduct is wrong is a question of fact.

                  (3)        The burden of proving that a child knows that his or her conduct is wrong is on the prosecution.

Division 2.3.2        Lack of capacity—mental impairment

27  Definition—mental impairment

                  (1)        In this Act:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

                  (2)        In this section:

mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.

                  (3)        However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

28  Mental impairment and criminal responsibility

                  (1)        A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—

                  (a)        the person did not know the nature and quality of the conduct; or

                  (b)        the person did not know that the conduct was wrong; or

                  (c)        the person could not control the conduct.

                  (2)        For subsection (1)(b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

                  (3)        The question whether a person was suffering from a mental impairment is a question of fact.

                  (4)        A person is presumed not to have been suffering from a mental impairment.

                  (5)        The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

                  (6)        The prosecution may rely on this section only if the court gives leave.

                  (7)        If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—

                  (a)        for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or

                  (b)        for any other offence—find the person not guilty of the offence because of mental impairment.

29  Mental impairment and other defences

                  (1)        A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.

                  (2)        If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility.

Division 2.3.3        Intoxication

30  Intoxication—interpretation

                  (1)        In this Act:

fault element of basic intent means a fault element of intention for a physical element that consists only of conduct.

intoxication means intoxication because of the influence of alcohol, a drug or any other substance.

                  (2)        For this Act, intoxication is self-induced unless it came about—

                  (a)        involuntarily; or

                  (b)        because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or

                  (c)        from the use of a drug for which a prescription is required and that was used in accordance with the directions of the doctor or dentist who prescribed it; or

                  (d)       from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.

                  (3)        However, subsection (2) (c) and (d) does apply if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person’s judgment or control.

31  Intoxication—offences involving basic intent

                  (1)        Evidence of self-induced intoxication cannot be considered in deciding whether a fault element of basic intent exists.

        Note A fault element of intention in relation to a result or circumstance is not a fault element of basic intent (see s 30 (1), def fault element of basic intent).

                  (2)        This section does not prevent evidence of self-induced intoxication being considered in deciding whether conduct was accidental.

                  (3)        This section does not prevent evidence of self-induced intoxication being considered in deciding whether a person had a mistaken belief about facts if, when carrying out the conduct making up the physical element of the offence, the person considered whether or not the facts existed.

                  (4)        A person may be taken to have considered whether or not facts existed when carrying out conduct if—

                  (a)        the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and

                  (b)        the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.

32  Intoxication—negligence as fault element

                  (1)        If negligence is a fault element for a particular physical element of an offence, in deciding whether the fault element exists for a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated.

                  (2)        However, if intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

33  Intoxication—relevance to defences

                  (1)        If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.

                  (2)        However, if—

            (a)        each physical element of an offence has a fault element of basic intent; and

                  (b)        any part of a defence is based on actual knowledge or belief;

evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.

                  (3)        If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.

                  (4)        If a person’s intoxication is not self-induced, in deciding whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

34  Involuntary intoxication

      A person is not criminally responsible for an offence if the person’s conduct making up the offence was as a result of intoxication that was not self-induced.

Division 2.3.4  ¾  Mistake and ignorance

35  Mistake or ignorance of fact—fault elements other than negligence

                  (1)        A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if—

                  (a)        when carrying out the conduct making up the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and

                  (b)        the existence of the mistaken belief or ignorance negates a fault element applying to the physical element.

                  (2)        In deciding whether a person was under a mistaken belief about facts, or was ignorant of facts, the trier of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.

36  Mistake of fact—strict liability

                  (1)        A person is not criminally responsible for an offence that has a physical element for which there is no fault element if—

                  (a)        when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and

                  (b)        had the facts existed, the conduct would not have been an offence.

                  (2)        A person may be taken to have considered whether or not facts existed when carrying out conduct if—

                  (a)        the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and

                  (b)        the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.

        Note         Section 24 (Absolute liability) prevents this section applying to offences of absolute liability.

37  Mistake or ignorance of law creating offence

                  (1)        A person can be criminally responsible for an offence even though, when carrying out the conduct required for the offence, the person is mistaken about, or ignorant of, the existence or content of a law that creates the offence.

                  (2)        However, the person is not criminally responsible for the offence if—

                  (a)        the law creating the offence expressly or impliedly provides that a person is not criminally responsible for the offence in those circumstances; or

                  (b)        the person’s ignorance or mistake negates a fault element applying to a physical element of the offence.

38  Claim of right

                  (1)        A person is not criminally responsible for an offence that has a physical element relating to property if—

                  (a)        when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and

                  (b)        the existence of the right would negate a fault element for any physical element of the offence.

                  (2)        A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.

                  (3)        This section does not negate criminal responsibility for an offence relating to the use of force against a person.

Division 2.3.5  ¾  External factors

39  Intervening conduct or event

      A person is not criminally responsible for an offence that has a physical element to which absolute or strict liability applies if—

                  (a)        the physical element is brought about by someone else over whom the person has no control or by a non-human act or event over which the person has no control; and

                  (b)        the person could not reasonably have been expected to guard against the bringing about of the physical element.

40  Duress

                  (1)        A person is not criminally responsible for an offence if the person carries out the conduct required for the offence under duress.

                  (2)        A person carries out conduct under duress only if the person reasonably believes that—

                  (a)        a threat has been made that will be carried out unless an offence is committed; and

                  (b)        there is no reasonable way to make the threat ineffective; and

                  (c)        the conduct is a reasonable response to the threat.

                  (3)        However, the person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating to carry out conduct of the kind required for the offence.

41  Sudden or extraordinary emergency

                  (1)        A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in response to circumstances of sudden or extraordinary emergency.

                  (2)        This section applies only if the person reasonably believes that—

                  (a)        circumstances of sudden or extraordinary emergency exist; and

                  (b)        committing the offence is the only reasonable way to deal with the emergency; and

                  (c)        the conduct is a reasonable response to the emergency.

42  Self-defence

                  (1)        A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in self-defence.

                  (2)        A person carries out conduct in self-defence only if—

                  (a)        the person believes the conduct is necessary—

                              (i)         to defend himself or herself or someone else; or

                              (ii)        to prevent or end the unlawful imprisonment of himself or herself or someone else; or

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

                              (iv)       to prevent criminal trespass to land or premises; or

                              (v)        to remove from land or premises a person committing criminal trespass; and

                  (b)        the conduct is a reasonable response in the circumstances as the person perceives them.

                  (3)        However, the person does not carry out conduct in self-defence if—

                  (a)        the person uses force that involves the intentional infliction of death or serious harm—

                              (i)         to protect property; or

                              (ii)        to prevent criminal trespass; or

                              (iii)       to remove a person committing criminal trespass; or

                  (b)        the person is responding to lawful conduct that the person knows is lawful.

                  (4)        Conduct is not lawful for subsection (3) (b) only because the person carrying it out is not criminally responsible for it.

43  Lawful authority

      A person is not criminally responsible for an offence if the conduct required for the offence is justified or excused under a law.

PART 2.4  ¾  EXTENSIONS OF CRIMINAL RESPONSIBILITY

44  Attempt

                  (1)        If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.

                  (2)        However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.

                  (3)        The question whether conduct is more than merely preparatory is a question of fact.

                  (4)        A person may be found guilty of attempting to commit an offence even though—

                  (a)        it was impossible to commit the offence attempted; or

                  (b)        the person committed the offence attempted.

                  (5)        For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.

        Note Only 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).

                  (6)        However, any special liability provisions that apply to an offence apply also to the offence of attempting to commit the offence.

                  (7)        Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the offence.

                  (8)        If a person is found guilty of attempting to commit an offence, the person cannot later be charged with committing the offence.

                  (9)        The offence of attempting to commit an offence is punishable as if the offence attempted had been committed.

                  (10)      This section does not apply to an offence against section 45 or section 48 (Conspiracy).

45  Complicity and common purpose

                  (1)        A person is taken to have committed an offence if the person aids, abets, counsels or procures the commission of the offence by someone else.

                  (2)        However, the person commits the offence because of this section only if—

                  (a)        the person’s conduct in fact aids, abets, counsels or procures the commission of the offence by the other person; and

                  (b)        when carrying out the conduct, the person either—

                              (i)         intends the conduct to aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type committed by the other person; or

                              (ii)        intends the conduct to aid, abet, counsel or procure the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person.

                  (3)        To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.

                  (4)        Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of the offence.

                  (5)        A person must not be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person—

                  (a)        ended his or her involvement; and

                  (b)        took all reasonable steps to prevent the commission of the offence.

                  (6)        A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.

                  (7)        To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.

                  (8)        If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.

46  Agency

                  (1)        A person is taken to have committed an offence if—

                  (a)        the person procures someone else to engage in conduct that (whether or not together with conduct engaged in by the person) makes up the physical elements of the offence consisting of conduct; and

                  (b)        any physical element of the offence consisting of a circumstance exists; and

                  (c)        any physical element of the offence consisting of a result of the conduct happens; and

                  (d)       when the person procured the other person to engage in the conduct, the person had a fault element applying to each physical element of the offence.

                  (2)        To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.

47  Incitement

                  (1)        If a person urges the commission of an offence (the offence incited), the person commits the offence of incitement.

      Penalty:

                  (a)        if the offence incited is punishable by life imprisonment—imprisonment for 10 years, 1 000 penalty units or both; or

                  (b)        if the offence incited is punishable by imprisonment for 14 years or more (but not life imprisonment)—imprisonment for 7 years, 700 penalty units or both; or

                  (c)        if the offence incited is punishable by imprisonment for 10 years or more (but less than 14 years)—imprisonment for 5 years, 500 penalty units or both; or

                  (d)       if the offence incited is punishable by imprisonment for less than 10 years, either or both of the following:

                              (i)   the lesser of the maximum term of imprisonment for the offence incited and imprisonment for 3 years;

                              (ii)        300 penalty units; or

                  (e)        if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applying to the offence incited.

                  (2)        However, the person commits the offence of incitement only if the person intends that the offence incited be committed.

                  (3)        Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of incitement to commit the offence.

                  (4)        A person may be found guilty of the offence of incitement even though it was impossible to commit the offence incited.

                  (5)        Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence.

                  (6)        This section does not apply to an offence against section 44 (Attempt), section 48 (Conspiracy) or this section.

48  Conspiracy

                  (1)        If a person conspires with someone else to commit an offence (the offence conspired) punishable by imprisonment for longer than 1 year or by a fine of 200 penalty units or more (or both), the person commits the offence of conspiracy.

                  (2)        However, the person commits the offence of conspiracy only if—

                  (a)        the person entered into an agreement with at least 1 other person; and

                  (b)        the person and at least 1 other party to the agreement intend that an offence be committed under the agreement; and

                  (c)        the person or at least 1 other party to the agreement commits an overt act under the agreement.

                  (3)        Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit the offence.

                  (4)        The offence of conspiring to commit an offence is punishable as if the offence conspired had been committed.

                  (5)        A person may be found guilty of the offence of conspiracy even though—

                  (a)        it was impossible to commit the offence conspired; or

                  (b)        the person and each other party to the agreement is a corporation; or

                  (c)        each other party to the agreement is—

                              (i)         a person who is not criminally responsible; or

                              (ii)        a person for whose benefit or protection the offence exists; or

                  (d)       all other parties to the agreement are acquitted of the conspiracy (unless to find the person guilty would be inconsistent with their acquittal).

                  (6)        A person must not be found guilty of the offence of conspiracy to commit an offence if, before the commission of an overt act under the agreement, the person—

                  (a)        withdrew from the agreement; and

                  (b)        took all reasonable steps to prevent the commission of the offence conspired.

                  (7)        A person for whose benefit or protection an offence exists cannot be found guilty of conspiracy to commit the offence.

                  (8)        Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of conspiracy to commit the offence.

                  (9)        A court may dismiss a charge of conspiracy if it considers that the interests of justice require it to dismiss the charge.

                  (10)      A proceeding for an offence of conspiracy must not be begun without the consent of the principal Crown law officer.

                  (11)      However, a person may be arrested for, charged with, or remanded in custody or on bail in relation to, an offence of conspiracy before the consent has been given.

PART 2.5  ¾  CORPORATE CRIMINAL RESPONSIBILITY

      49        General principles

                  (1)        This Act applies to corporations as well as individuals.

                  (2)        The Act applies to corporations in the same way as it applies to individuals, but subject to the changes made by this Part and any other changes necessary because criminal responsibility is being imposed on a corporation rather than an individual.

50  Physical elements

      A physical element of an offence consisting of conduct is taken to be committed by a corporation if it is committed by an employee, agent or officer of the corporation acting within the actual or apparent scope of his or her employment or within his or her actual or apparent authority.

51  Corporation—fault elements other than negligence

                  (1)        In deciding whether the fault element of intention, knowledge or recklessness exists for an offence in relation to a corporation, the fault element is taken to exist if the corporation expressly, tacitly or impliedly authorises or permits the commission of the offence.

                  (2)        The ways in which authorisation or permission may be established include—

                  (a)        proving that the corporation’s board of directors intentionally, knowingly or recklessly engaged in the conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

                  (b)        proving that a high managerial agent of the corporation intentionally, knowingly or recklessly engaged in the conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

                  (c)        proving that a corporate culture existed within the corporation that directed, encouraged, tolerated or led to noncompliance with the contravened law; or

                  (d)       proving that the corporation failed to create and maintain a corporate culture requiring compliance with the contravened law.

                  (3)        Subsection (2) (b) does not apply if the corporation proves that it exercised appropriate diligence to prevent the conduct, or the authorisation or permission.

                  (4)        Factors relevant to subsection (2) (c) and (d) include—

                  (a)        whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the corporation; and

                  (b)        whether the employee, agent or officer of the corporation who committed the offence reasonably believed, or had a reasonable expectation, that a high managerial agent of the corporation would have authorised or permitted the commission of the offence.

                  (5)        If recklessness is not a fault element for a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the corporation recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.

                  (6)        In this section:

board of directors, of a corporation, means the body exercising the corporation’s executive authority, whether or not the body is called the board of directors.

corporate culture, for a corporation, means an attitude, policy, rule, course of conduct or practice existing within the corporation generally or in the part of the corporation where the relevant conduct happens.

high managerial agent, of a corporation, means an employee, agent or officer of the corporation whose conduct may fairly be assumed to represent the corporation’s policy because of the level of responsibility of his or her duties.

52  Corporation—negligence

                  (1)        This section applies if negligence is a fault element in relation to a physical element of an offence and no individual employee, agent or officer of a corporation has the fault element. 

                  (2)        The fault element of negligence may exist for the corporation in relation to the physical element if the corporation’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of a number of its employees, agents or officers).

        Note         The test of negligence for a corporation is that set out in s 21 (Negligence).

53  Corporation—mistake of fact—strict liability

      A corporation may only rely on section 36 (Mistake of fact—strict liability) in relation to the conduct that would make up an offence by the corporation if—

                  (a)        the employee, agent or officer of the corporation who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have been an offence; and

                  (b)        the corporation proves that it exercised appropriate diligence to prevent the conduct.

54  Corporation—intervening conduct or event

      A corporation may not rely on section 39 (Intervening conduct or event) in relation to a physical element of an offence brought about by someone else if the other person is an employee, agent or officer of the corporation.

55  Evidence of negligence or failure to exercise appropriate diligence

      Negligence, or failure to exercise appropriate diligence, in relation to conduct of a corporation may be evidenced by the fact that the conduct was substantially attributable to—

                  (a)        inadequate corporate management, control or supervision of the conduct of 1 or more of the corporation’s employees, agents or officers; or

                  (b)        failure to provide adequate systems for giving relevant information to relevant people in the corporation.

PART 2.6  ¾  PROOF OF CRIMINAL RESPONSIBILITY

56  Legal burden of proof—prosecution

                  (1)        The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged.

        Note         See s 11 (Elements) on what elements are relevant to a person’s guilt.

                  (2)        The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.

                  (3)        In this Act:

legal burden, in relation to a matter, means the burden of proving the existence of the matter.

57  Standard of proof—prosecution

                  (1)        A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

                  (2)        Subsection (1) does not apply if a law provides for a different standard of proof.

58  Evidential burden of proof—defence

                  (1)        Subject to section 59 (Legal burden of proof—defence), a burden of proof that a law imposes on a defendant is an evidential burden only.

                  (2)        A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.

                  (3)        Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.

Examples

1      The XYZ Act 2006, section 10(1) creates an offence of producing a false or misleading document. Section 10(2) provides—

        (2)           This section does not apply if the document is not false or misleading in a material particular.

Section 10(2) is an exception to section 10(1). A defendant who wishes to rely on the exception has an evidential burden that the document is not false or misleading in a material particular.

2      The XYZ Act 2005, section 10(1) creates an offence of a person making a statement knowing that it omits something without which the statement is misleading. Section 10(2) provides—

        (2)           This section does not apply if the omission does not make the statement misleading in a material particular.

Section 10(2) is an exception to section 10(1). A defendant who wishes to rely on the exception has an evidential burden that the omission did not make the statement misleading in a material particular.

3      The XYZ Act 2004, section 10(1) creates an offence of disclosing certain information about a restraining order. Section 10(2) provides—

        (2)           This section does not apply if the disclosure is made to a police officer.

Section 10(2) is an exception to section 10(1). A defendant who wishes to rely on the exception has an evidential burden that the disclosure was made to a police officer.

                  (4)        To remove any doubt, for a strict liability offence that allows the defence of reasonable excuse, a defendant has an evidential burden in relation to the defence.

                  (5)        The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.

                  (6)        The question whether an evidential burden has been discharged is a question of law.

                  (7)        In this Act:

evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

59  Legal burden of proof—defence

      A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly—

                  (a)        provides that the burden of proof in relation to the matter in question is a legal burden; or

                  (b)        requires the defendant to prove the matter; or

                  (c)        creates a presumption that the matter exists unless the contrary is proved.

Example for paragraph (b)

The XYZ Act 2007, section 10 (1) creates an offence of exhibiting a film classified ‘R’ to a child. Section 10(2) provides—

        (2)           It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant believed on reasonable grounds that the child was an adult.

Section 10(2) provides a defence to an offence against section 10(1). A defendant who wishes to rely on the defence has a legal burden of proving that the defendant believed on reasonable grounds that the child was an adult.

60  Standard of proof—defence

      A legal burden of proof on the defendant must be discharged on the balance of probabilities.

61  Use of averments

      A law that allows the prosecution to make an averment (however expressed) does not allow the prosecution—

                  (a)        to aver any fault element of an offence; or

                  (b)        to make an averment in prosecuting for an offence that is directly punishable by imprisonment.

PART 2.7 GEOGRAPHICAL APPLICATION

62  Application and effect—Part 2.7

                  (1)        This Part applies to all offences.

        Note The definition of offence (together with the definition of law) in the dictionary at the end of this Act means that this subsection applies this Part to offences against Norfolk Island legislation (but not to offences against applied NSW laws). Subsection (1A) extends the application of this Part to offences against applied NSW laws.

                  (1A)    This Part also:

                  (a)        applies in relation to an offence against an applied NSW law in the same way as this Part applies in relation to an offence or an offence against a law; and

                  (b)        applies in relation to an applied NSW law in the same way as this Part applies in relation to a law.

        Note An offence against an applied NSW law is not covered by the definition of offence in the dictionary at the end of this Act. An applied NSW law is not covered by the definition of law in the dictionary at the end of this Act.

                  (2)        This Part extends the application of a law that creates an offence beyond the territorial limits of Norfolk Island if the required geographical nexus exists for the offence.

                  (3)        If a law that creates an offence provides for any geographical consideration for the offence, that provision prevails over any inconsistent provision of this Part.

Examples for subsection (3)

1.     A law creating an offence may provide that the place of commission of the offence is (explicitly or by necessary implication) an element of the offence.

2      A law creating an offence may provide for its application outside Norfolk Island and exclude (explicitly or by necessary implication) the requirement for a geographical nexus between Norfolk Island and an element of the offence.

63  Interpretation—Part 2.7

                  (1)        For this Part, the required geographical nexus is the geographical nexus mentioned in section 64 (2).

                  (2)        For this Part, the place where an offence is committed is the place where any of the physical elements of the offence happen.

                  (3)        For this Part, the place where an offence has an effect includes—

                  (a)        any place whose peace, welfare or good government is threatened by the offence; and

                  (b)        any place where the offence would have an effect (or would cause such a threat) if the offence were committed.

        Note Norfolk Island used in a geographical sense means the Territory of Norfolk Island as defined in the Norfolk Island Act 1979.

64  Extension of offences if required geographical nexus exists

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

                  (a)        disregarding any geographical considerations, all elements of the offence exist; and

                  (b)        a geographical nexus exists between Norfolk Island and the offence.

                  (2)        A geographical nexus exists between Norfolk Island and an offence if—

                  (a)        the offence is committed completely or partly in Norfolk Island, whether or not the offence has any effect in Norfolk Island; or

                  (b)        the offence is committed completely outside Norfolk Island (whether or not outside Australia) but has an effect in Norfolk Island.

65  Geographical application—double criminality

                  (1)        This Part applies to an offence committed partly in Norfolk Island and partly in a place outside Norfolk Island (whether or not outside Australia), even if it is not also an offence in that place.

                  (2)        This Part applies to an offence committed completely outside Norfolk Island (whether or not outside Australia) only if—

                  (a)        it is also an offence in the place where it is committed; or

                  (b)        it is not also an offence in that place, but the trier of fact is satisfied that the offence is such a threat to the peace, welfare or good government of Norfolk Island that it justifies criminal punishment in Norfolk Island.

66  Geographical application—procedure

                  (1)        The required geographical nexus is conclusively presumed for an offence unless rebutted under subsection (2) or (4).

                  (2)        If a person charged with an offence disputes the existence of the required geographical nexus for the offence, the following provisions apply:

                  (a)        the court must proceed with the trial of the offence in the usual way;

                  (b)        if, at the end of the trial, the trier of fact is satisfied on the balance of probabilities that the required geographical nexus does not exist, it must make or return a finding to that effect, and the court must dismiss the charge;

                  (c)        however, if, disregarding any geographical considerations, the trier of fact would find the person not guilty of the offence (other than because of mental impairment), it must make or return a verdict of not guilty;

                  (d)       also, if, disregarding any geographical considerations, the trier of fact would find the person not guilty of the offence only because of mental impairment, it must make or return a verdict that the person is not guilty of the offence because of mental impairment.

                  (3)        This section applies to any alternative verdict available by law to the trier of fact in relation to another offence with which the person was not charged.

                  (4)        The trier of fact may make or return a finding of guilty in relation to the other offence (mentioned in subsection (3)) unless satisfied on the balance of probabilities that the required geographical nexus does not exist for the other offence.

                  (5)        If the issue of whether the required geographical nexus exists for an offence is raised before the trial (including at a special hearing under section 23 of the Criminal Procedure Act 2007, the issue must be reserved for consideration at the trial.

67  Geographical application—suspicion etc that offence committed

                  (1)        This section applies if a person may exercise a function under a law on reasonable suspicion or belief that an offence has been committed.

                  (2)        The person may exercise the function if the person suspects or believes, as the case requires, on reasonable grounds that all the elements required for the offence exist.

                  (3)        Subsection (2) applies whether or not the person suspects or believes, or has any ground to suspect or believe, that the required geographical nexus exists for the offence.

CHAPTER 3  ¾  OFFENCES AGAINST THE PERSON

PART 3.1 UNLAWFUL KILLING

68  When child born alive

      For this Part, a child shall be taken to have been born alive if he or she has breathed and has been wholly born, whether or not he or she has had an independent circulation.

69  No time limit on criminal responsibility for homicide

                  (1)        Any rule of law that a death which occurs more than a year and a day after the injury that caused it is to be conclusively presumed not to have been caused by the injury, is abolished.

                  (2)        This section does not apply in respect of an injury received before the commencement of this section.

70  Murder

                  (1)                    A person commits murder if he or she causes the death of another person—

                  (a)        intending to cause the death of any person; or

                  (b)        with reckless indifference to the probability of causing the death of any person.

                  (2)                    A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.

71  Trial for murder—provocation

                  (1)        If, on a trial for murder—

                  (a)        it appears that the act or omission causing death occurred under provocation; and

                  (b)        apart from 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 him or her guilty of manslaughter.

                  (2)        For subsection (1), an act or omission causing death shall be taken to have occurred under provocation if—

                  (a)        the act or omission was the result of the accused’s loss of self-control induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

                  (b)        the 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—

                              (i)         as to have formed an intent to kill the deceased; or

                              (ii)        as to be recklessly indifferent to the probability of causing the deceased’s death;

whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

                  (3)        However, conduct of the deceased consisting of a non-violent sexual advance (or advances) towards the accused—

                  (a)        is taken not to be sufficient, by itself, to be conduct to which subsection (2) (b) applies; but

                  (b)        may be taken into account together with other conduct of the deceased in deciding whether there has been an act or omission to which subsection (2) applies.

                  (4)                    For the purpose of determining whether an act or omission causing death occurred under provocation, 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; or

                  (b)        the act or omission causing death did not occur suddenly; or

                  (c)        the act or omission causing death occurred with any intent to take life or inflict grievous bodily harm.

                  (5)        If, on a trial for murder, there is evidence that the act or omission causing death occurred under provocation, the onus of proving beyond reasonable doubt that the act or omission did not occur under provocation lies on the prosecution.

                  (6)                    This section does not exclude or limit any defence to a charge of murder.

72  Trial for murder—diminished responsibility

                  (1)        A person on trial for murder shall not be convicted of murder if, when the act or omission causing death occurred, the accused was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent cause or whether it was induced by disease or injury) that substantially impaired his or her mental responsibility for the act or omission.

                  (2)        An accused has the onus of proving that he or she is, under subsection (1), not liable to be convicted of murder.

                  (3)        A person who, apart from subsection (1), would be liable (whether as principal or accessory) to be convicted of murder is liable to be convicted of manslaughter.

                  (4)        The fact that a person is, under subsection (1), not liable to be convicted of murder does not affect the question whether any other person is liable to be convicted of murder in respect of the same death.

                  (5)        If, on a trial for murder, the accused contends—

                  (a)        that he or she is entitled to be acquitted on the ground that he or she was mentally ill at the time of the act or omission causing the death; or

                  (b)        that he or she is, under subsection (1), not liable to be convicted of murder;

the prosecution may offer evidence tending to prove the other of those contentions and the court may give directions as to the stage of the proceedings when that evidence may be offered.

73  Manslaughter

                  (1)        Except if a law expressly provides otherwise, an unlawful homicide that is not, under section 12, murder shall be taken to be manslaughter.

                  (2)        A person who commits manslaughter is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

                  (3)        However, for an aggravated offence against this section, the Penalty is imprisonment for 26 years.

        Note Section 105 (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.

PART 3.2  ¾  SUICIDE

74  Suicide, etc—not an offence

      The rule of law that it is an offence for a person to commit, or to attempt to commit, suicide is abolished.

75  Suicide—aiding, etc

                  (1)        A person who aids or abets the suicide or attempted suicide of another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

                  (2)        If—

                  (a)        a person incites or counsels another person to commit suicide; and

                  (b)        the other person commits, or attempts to commit, suicide as a consequence of that incitement or counselling;

the firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

76  Prevention of suicide

      It is lawful for a person to use the force that is reasonable to prevent the suicide of another person or any act that the person believes on reasonable grounds would, if committed, result in the suicide of another person.

PART 3.3  ¾  OFFENCES ENDANGERING LIFE AND HEALTH

77  Intentionally inflicting grievous bodily harm

                  (1)        A person who intentionally inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

                  (2)        However, for an aggravated offence against this section, the Penalty is imprisonment for 20 years.

        Note Section 105 (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.

78  Recklessly inflicting grievous bodily harm

                  (1)        A person who recklessly inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

                  (2)        However, for an aggravated offence against this section, the Penalty is imprisonment for 13 years.

        Note Section 105 (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.

79  Wounding

                  (1)        A person who intentionally wounds another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

                  (2)        However, for an aggravated offence against this section, the Penalty is imprisonment for 7 years.

        Note Section 105 (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.

80  Assault with intent to commit certain indictable offences

      A person who assaults another person with intent to commit another offence against this Part punishable by imprisonment for a maximum period of 5 years or longer is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

81  Inflicting actual bodily harm

                  (1)        A person who intentionally or recklessly inflicts actual bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

                  (2)        However, for an aggravated offence against this section, the Penalty is imprisonment for 7 years.

        Note Section 105 (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.

82  Assault occasioning actual bodily harm

                  (1)        A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

                  (2)        However, for an aggravated offence against this section, the Penalty is imprisonment for 7 years.

        Note Section 105 (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.

83  Causing grievous bodily harm

      A person who, by any unlawful or negligent act or omission, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

84  Common assault

      A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

86  Acts endangering life, etc

                  (1)        In this section:

conveyance means a vehicle (including an aircraft) or vessel of a kind used for transporting persons, animals or goods.

public utility service means—

                  (a)        the supply of electricity, gas or water; or

                  (b)        the supply of fuel; or

                  (c)        the collection and disposal of sewerage and other waste;

as a service to the public.

transport facility means a facility provided to permit the transportation of persons, animals or goods, whether by air or over land or water, or provided in connection with such transportation.

                  (2)        For subsection (3) (g), an interference shall be taken to include any act or omission that, whether temporarily or permanently, damages, renders inoperative, obstructs, causes to malfunction or puts to an improper purpose.

                  (3)        A person who intentionally and unlawfully—

                  (a)        chokes, suffocates or strangles another person so as to render that person insensible or unconscious or, by any other means, renders another person insensible or unconscious; or

                  (b)        administers to, or causes to be taken by, another person any stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause a person grievous bodily harm; or

                  (c)        uses against another person any offensive weapon likely to endanger human life or cause a person grievous bodily harm; or

                  (d)       discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety; or

                  (e)        causes an explosion or throws, places, sends or otherwise uses any explosive device or any explosive, corrosive or inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm; or

                  (f)        sets a trap or device for the purpose of creating circumstances likely to endanger human life or cause a person (including a trespasser) grievous bodily harm; or

                  (g)        interferes with any conveyance or transport facility or any public utility service in circumstances likely to endanger human life or cause a person grievous bodily harm; or

is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

                  (4)        A person who does an act referred to in subsection (3)—

                  (a)        intending to commit an indictable offence against this Part punishable by imprisonment for a maximum period exceeding 10 years; or

                  (b)        intending to prevent or hinder his or her lawful apprehension or detention or that of another person; or

                  (c)        intending to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably calls for investigation by the officer;

is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

87  Acts endangering health, etc

                  (1)        In this section:

conveyance—see section 86 (1).

interferes with—see section 86 (2).

public utility service—see section 86 (1).

transport facility—see section 86 (1).

                  (2)        A person who intentionally and unlawfully—

                  (aa)      chokes, suffocates or strangles another person; or

                  (a)        administers to, or causes to be taken by, another person any poison or other injurious substance with intent to injure or cause pain or discomfort to that person; or

                  (b)        causes an explosion or throws, places, sends or otherwise uses any explosive device or any explosive, corrosive or inflammable substance in circumstances dangerous to the health, safety or physical wellbeing of another person; or

                  (c)        sets a trap or device for the purpose of creating circumstances dangerous to the health, safety or physical wellbeing of another person (including a trespasser); or

                  (d)       interferes with any conveyance or transport facility or any public utility service in circumstances dangerous to the health, safety or physical wellbeing of another person;

is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

88  Culpable driving of motor vehicle

                  (1)        A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 7 years.

                  (2)        However, for an aggravated offence against subsection (2), the Penalty is imprisonment for 9 years.

        Note Section 105 (Aggravated offences—offences against pregnant women) makes provision in relation to aggravated offences against this section.

                  (3)        A person who, by the culpable driving of a motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 4 years.

                  (4)        However, for an aggravated offence against subsection (4), the Penalty is imprisonment for 5 years.

                  (5)        For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle—

                  (a)        negligently; or

                  (b)        while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.

                  (6)        For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.

                  (7)        An information or indictment for an offence against subsection (1) or (3) shall specify the nature of the culpability, within the meaning of subsection (5), that is alleged.

                  (8)        Nothing in subsection (7) renders inadmissible in proceedings for an offence against subsection (1) or (2) evidence that, apart from that subsection, would be admissible in the proceedings.

                  (9)        Nothing in this section affects—

                  (a)        the liability of a person to be convicted of murder or manslaughter or any other offence; or

                  (b)        the punishment that may be imposed for such an offence.

        Note Under the Road Transport (General) Act 1999, s 46(1) (Disqualification, etc, compulsory in certain cases), if a person is convicted, or found guilty, of an offence against this section, the person is automatically disqualified from holding or obtaining a driver licence.

                  (10)      A person who has been convicted or acquitted of an offence against subsection (1) or (3) is not liable to be convicted of any other offence against this Act on the same facts or on substantially the same facts.

                  (11)      Subject to section 107, a person is not liable to be convicted of an offence against subsection (1) or (3) if the person has been convicted or acquitted of any other offence on the same facts or on substantially the same facts.

89  Threat to kill

      If—

                  (a)        a person makes a threat to another person to kill that other person or any third person—

                              (i)         intending that other person to fear that the threat would be carried out; or

                              (ii)        being reckless whether or not that other person would fear that the threat would be carried out; and

                  (b)        the threat is made—

                              (i)         without lawful excuse; and

                              (ii)        in circumstances in which a reasonable person would fear that the threat would be carried out;

the firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

90  Threat to inflict grievous bodily harm

      If—

                  (a)        a person makes a threat to another person to inflict grievous bodily harm on that other person or any third person—

                              (i)         intending that other person to fear that the threat would be carried out; or

                              (ii)        being reckless whether or not that other person would fear that the threat would be carried out; and

                  (b)        the threat is made—

                              (i)         without lawful excuse; and

                              (ii)        in circumstances in which a reasonable person would fear that the threat would be carried out;

the firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

91  Demands accompanied by threats

                  (1)        A person who—

                  (a)        makes a demand of another person; or

                  (b)        resists, prevents or hinders his or her lawful apprehension or detention, or that of another person; or

                  (c)        prevents or hinders a police officer from lawfully investigating any act or matter that reasonably calls for investigation by the officer;

with a threat to kill or inflict grievous bodily harm on a person (other than the offender or an accomplice of the offender) is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

                  (2)        A person who—

                  (a)        makes a demand of another person; or

                  (b)        resists, prevents or hinders his or her lawful apprehension or detention, or that of another person; or

                  (c)        prevents or hinders a police officer from lawfully investigating any act or matter that reasonably calls for investigation by the officer;

with a threat to endanger the health, safety or physical wellbeing of a person (other than the offender or an accomplice of the offender) is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

92  Possession of object with intent to kill, etc

      A person who—

            (a)        has possession of an object capable of causing harm to another person; and

                  (b)        intends to use the object, or to cause or permit another person to use the object, unlawfully to kill another person or cause grievous bodily harm to another person;

is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

93  Forcible confinement

      A person who unlawfully confines or imprisons another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

94  Stalking

                  (1)        A person must not stalk someone with intent—

                  (a)        to cause apprehension, or fear of harm, in the person stalked or someone else; or

                  (b)        to cause harm to the person stalked or someone else; or

                  (c)        to harass the person stalked.

      Penalty:

                  (a)        imprisonment for 5 years if—

                              (i)   the offence involved a contravention of an injunction or other order made by a court; or

                              (ii)        the offender was in possession of an offensive weapon; or

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

                  (2)        For this section, a person stalks someone else (the stalked person) if, on at least 2 occasions, the person does 1 or more of the following:

                  (a)        follows or approaches the stalked person;

                  (b)        loiters near, watches, approaches or enters a place where the stalked person resides, works or visits;

                  (c)        keeps the stalked person under surveillance;

                  (d)       interferes with property in the possession of the stalked person;

                  (e)        gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person;

                  (f)        telephones, sends electronic messages to or otherwise contacts the stalked person;

                  (g)        sends electronic messages about the stalked person to anybody else;

                  (h)        makes electronic messages about the stalked person available to anybody else;

                  (i)         acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person;

                  (j)         engages in conduct amounting to intimidation, harassment or molestation of the stalked person.

                  (3)        However, this section does not apply to reasonable conduct engaged in by a person as part of the person’s employment if it is a function of the person’s employment to engage in the conduct and the conduct is not otherwise unlawful.

                  (4)        Without limiting subsection (1), a person is also taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely—

                  (a)        to cause apprehension or fear of harm in the person stalked or someone else; or

                  (b)        to harass the person stalked.

                  (5)        In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked or someone else apprehended or feared harm or that the person stalked was harassed.

                  (6)        For this section:

harm means physical harm, harm to mental health, or disease, whether permanent or temporary.

harm to mental health includes psychological harm.

physical harm includes unconsciousness, pain, disfigurement and physical contact that might reasonably be objected to in the circumstances, whether or not there was an awareness of the contact at the time.

95  Torture

                  (1)        In this section:

act of torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—

                  (a)        for such purposes as—

                              (i)         obtaining from the person or from a third person information or a confession; or

                              (ii)        punishing the person for an act that the person or a third person has committed or is suspected of having committed; or

                              (iii)       intimidating or coercing the person or a third person; or

                  (b)        for any reason based on discrimination of any kind;

but does not include an act arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the articles of the International Covenant on Civil and Political Rights (being the covenant a copy of the English text of which is set out in the Human Rights and Equal Opportunity Commission Act 1986 (Cwlth), Schedule 2.

                  (2)        A person who—

                  (a)        is a public employee or acting in an official capacity; or

                  (b)        is acting at the instigation, or with the consent or acquiescence, of a public employee or a person acting in an official capacity;

and who commits an act of torture is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

96  Abduction of young person

      A person who unlawfully takes, or causes to be taken, an unmarried person under the age of 16 years out of the lawful control and against the will of a person having lawful control of the unmarried person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

97  Kidnapping

      A person who leads, takes or entices away or detains a person with intent to hold that person for ransom or for any other advantage to any person is guilty of an offence punishable, on conviction, by—

                  (a)        if that other person suffers any grievous bodily harm while being so led, taken or enticed away, or detained—imprisonment for 20 years; or

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

PART 3.4  ¾  OFFENCES CONCERNING CHILDREN

98  Neglect, etc of children

                  (1)        A person must not—

                  (a)        ill-treat or abuse a child who is in the person’s care; or

                  (b)        neglect a child for whom he or she is caring or has parental responsibility.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        A person is not guilty of an offence referred to in subsection (1) (b) by reason only of failing to provide a thing for a child if the person did not provide the thing because he or she could not afford to do so.

                  (3)        A person must not, knowingly or recklessly, leave a child unattended in such circumstances and for such a time that the child could suffer injury or sickness or otherwise be in danger.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (4)        A police officer or medical practitioner may act (including by entering any building, place or vehicle, with such force that is necessary and reasonable) if the police officer or medical practitioner reasonably believes—

                  (a)        that a child is being or has been ill-treated, abused or neglected as mentioned in subsection (1) or left unattended as mentioned in subsection (3); and

                  (b)        that it is necessary to act immediately to safeguard the child.

                  (5)        An action does not lie against a person by reason of the person having acted under subsection (4) in good faith, without negligence and with reasonable care in the circumstances.

                  (6)        In this section:

parental responsibility, for a child, means all the duties, powers, responsibilities and authority parents ordinarily have by law in relation to their children.

99  Unlawfully taking child, etc

      A person who, by force or deception, leads, takes or entices away or detains a child under the age of 12 years—

                  (a)        intending unlawfully to deprive another person of the lawful control of the child; or

                  (b)        intending to steal any article on or about the person of the child;

is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

100            Exposing or abandoning child

      A person who unlawfully abandons or exposes a child under the age of 2 years and by the abandonment or exposure endangers the life or health of the child is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

101            Child destruction

      A person who unlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to a childbirth and before the child is born alive—

                  (a)        prevents the child from being born alive; or

                  (b)        contributes to the child’s death;

is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

102            Childbirth—grievous bodily harm

      A person who unlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to a childbirth and before the child is born alive, inflicts grievous bodily harm on the child, is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

103            Concealment of birth

                  (1)        A person who disposes of the dead body of a child (whether or not the child was born alive) with intent to conceal the child’s birth is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

                  (2)        It is a defence to a charge for an offence against subsection (1) if the accused satisfies the court or jury that the body disposed of had issued from the mother’s body before the end of the 28th week of pregnancy.

PART 3.5  ¾  MISCELLANEOUS OFFENCES

104            Misconduct with regard to corpses

      A 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);

is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

105            Aggravated offences—offences against pregnant women

                  (1)        This section applies to an offence against any of the following provisions:

                  (a)        section 73 (Manslaughter);

                  (b)        section 77 (Intentionally inflicting grievous bodily harm);

                  (c)        section 78 (Recklessly inflicting grievous bodily harm);

                  (d)       section 79 (Wounding);

                  (e)        section 81 (Inflicting actual bodily harm);

                  (f)        section 82 (Assault occasioning actual bodily harm);

                  (g)        section 88 (1) or (3) (Culpable driving of motor vehicle).

                  (2)        The offence is an aggravated offence if—

                  (a)        the offence was committed against a pregnant woman; and

                  (b)        the commission of the offence caused—

                              (i)         the loss of, or serious harm to, the pregnancy; or

                              (ii)        the death of, or serious harm to, a child born alive as a result of the pregnancy.

                  (3)        However, the offence is not an aggravated offence if the defendant proves, on the balance of probabilities, that the defendant did not know, and could not reasonably have known, that the woman was pregnant.

                  (4)        If the prosecution intends to prove that the offence is an aggravated offence, the relevant factors of aggravation must be stated in the charge.

                  (5)        To remove any doubt—

                  (a)        it is not necessary for the prosecution to prove that the defendant had a fault element in relation to any factor of aggravation; and

                  (b)        chapter 2 (other than the applied provisions) does not apply to an offence to which this section applies, whether or not it is an aggravated offence.

                  (6)        In this section:

cause loss, serious harm or death—a person’s conduct causes loss, serious harm or death if it substantially contributes to the loss, serious harm or death.

factor of aggravation means a matter mentioned in subsection (2) (a) or (b).

harm to a child—see the Criminal Code, dictionary, definition of harm.

harm to a pregnancy includes maternal haemorrhage, rupture of the uterus or membranes, placental abruption, pre-term uterine contractions, foetal haemorrhage and trauma to the foetus.

loss of a pregnancy means a miscarriage or stillbirth.

serious harm to a child—see dictionary.

serious harm to a pregnancy means any harm (including the cumulative effect of more than 1 harm) that—

                  (a)        is likely to cause loss of the pregnancy; or

                  (b)        endangers, or is likely to endanger, the natural course of the pregnancy.

106            Alternative verdicts for aggravated offences—offences against pregnant women

                  (1)        If, in a prosecution for an aggravated offence mentioned in column 2 of an item in table 106 the trier of fact is not satisfied that the defendant committed the aggravated offence, but is satisfied beyond reasonable doubt that the defendant committed an offence mentioned in column 3 of the item (the alternative offence), the trier of fact may find the defendant guilty of the alternative offence but only if the defendant has been given procedural fairness in relation to that finding of guilt.

Table 106

column 1

item

column 2

aggravated offence

column 3

alternative offences

1

section 73 (Manslaughter), aggravated offence

1.1       section 15, simple offence

 

1.2       section 17 (1) (Suicide—aiding etc)

 

1.3       section 17 (2)

 

 

1.4       section 20 (Recklessly inflicting grievous bodily harm), aggravated offence

 

 

1.5       section 20, simple offence

 

 

1.6       section 25 (Causing grievous bodily harm)

 

 

1.7       section 87(2) (Culpable driving of motor vehicle—causing death), aggravated offence

 

 

1.8       section 87(2), simple offence

 

 

1.9       section 100 (Child destruction)

 

 

1.10     section 105 (Concealment of birth)

 

 

 

2

section 77 (Intentionally inflicting grievous bodily harm), aggravated offence

2.1       section 77 simple offence

 

2.2       section 78 Recklessly inflicting grievous bodily harm), aggravated offence

 

2.3       section 78 simple offence

 

 

2.4       section 79 Wounding), aggravated offence

 

 

2.5       section 79 simple offence

 

 

2.6       section 81 Inflicting actual bodily harm), aggravated offence

 

 

2.7       section 81 simple offence

 

 

2.8       section 101 (Childbirth—grievous bodily harm)

 

 

 

3

section 78 (Recklessly inflicting grievous bodily harm), aggravated offence

3.1       section 78 simple offence

 

3.2       section 81 Inflicting actual bodily harm), aggravated offence

 

3.3       section 81 simple offence

 

 

3.4       section 83 (Causing grievous bodily harm)

 

 

3.5       section 87(4) (Culpable driving of motor vehicle—causing grievous bodily harm), aggravated offence

 

 

3.6       section 87(4), simple offence

 

 

3.7       section 101 (Childbirth—grievous bodily harm)

 

 

 

4

section 78 (Wounding), aggravated offence

4.1       section 79, simple offence

 

4.2       section 81 (Inflicting actual bodily harm), aggravated offence

 

 

4.3       section 81, simple offence

 

 

4.4       section 82 (Assault occasioning actual bodily harm), aggravated offence

 

 

4.5       section 82, simple offence

 

 

4.6       section 84 (Common assault)

 

 

 

                  (2)        In this section:

aggravated offence—see section 105(2).

simple offence—a simple offence, in relation to a provision, means an offence against the provision that is not an aggravated offence against the provision.

107            Alternative verdicts for certain other offences against the person

      If, on a trial for an offence against a provision specified in column 2 in an item in table 107, the jury is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence against a provision specified in column 3 in that item, it may find the accused not guilty of the offence charged but guilty of the offence against the provision specified in column 3:

                 

Table 107

column 1

Item

column 2

offence charged

column 3

alternative offences

1

section 70(2)

(a)  section 73(2)

 

(Murder)

(b)  section 75(1)

 

 

(c)  section 75(2)

 

 

(d)  section 100

 

 

(e)  section 105(1)

2

section 73(1)

(a)  section 75(1)

 

(Manslaughter)

(b)  section 75(2)

 

 

(c)  section 78

 

 

(d)  section 83

 

 

(e)  section 87(1)

 

 

(f)  section 100

 

 

(g)  section 105(1)

3

section 77

(a)  section 78

 

(Intentionally inflicting

(b)  section 79

 

grievous bodily harm)

(c)  section 81

 

 

(d)  section 101

4

section 78

(a)  section 81

 

(Recklessly inflicting

(b)  section 83

 

grievous bodily harm)

(c)  section 87(3)

 

 

(d)  section 101

5

section 79

(a)  section 81

 

(Wounding)

(b)  section 82

 

 

(c)  section 84

6

section 80(2)

(Assault with intent to commit indictable offence)

section 84

7

section 82

(Assault occasioning actual bodily harm)

section 84

8

section 85(3)(b)

(Administering drugs etc endangering life etc)

section 84(2)(a)

9

section 85(3)(e)

(Causing explosions etc endangering life etc)

section 84(2)(b)

10

section 85(3)(f)

(Setting traps endangering life etc)

section 84(2)(c)

11

section 27(3)(g)

(Interfering with conveyances and endangering life etc)

 

section 84(2)(d)

 

PART 3.6  ¾  SEXUAL OFFENCES

108             Meaning of sexual intercourse in this Part

                  (1)       In this Part, sexual intercourse means:

                  (a)        the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person; or

                  (b)        the penetration, to any extent, of the genitalia or anus of a person, by an object, carried out by another person; or

                  (c)        fellatio; or

                  (d)       cunnilingus; or

                  (e)        the continuation of any activity mentioned in paragraph (a), (b), (c) or (d).

                  (2)       In this Part, sexual intercourse does not include an act of penetration that:

                  (a)        is carried out for a proper medical or hygienic purpose; or

                  (b)        is carried out for a proper law enforcement purpose.

                  (3)       In this section:

genitalia includes surgically constructed or altered genitalia.

object includes an animal.

108A          Meaning of act of indecency in this Part

      In this Part:

act of indecency means any act, other than sexual intercourse, that:

                  (a)        is of a sexual or indecent nature (including an indecent assault); and

                  (b)        involves the human body, or bodily actions or functions;

whether or not the act involves physical contact between people.

109            Sexual assault in the first degree

                  (1)        A person who inflicts grievous bodily harm on another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 17 years.

                  (2)        A person who, acting in company with any other person, inflicts, or assists in inflicting, grievous bodily harm on a third person with the intent that the firstmentioned person, or any person with whom he or she is in company, should engage in sexual intercourse with that third person, or with any other person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

110            Sexual assault in the second degree

                  (1)        A person who inflicts actual bodily harm on another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

                  (2)        A person who, acting in company with any other person, inflicts, or assists in inflicting, actual bodily harm on a third person with the intent that the firstmentioned person, or any person with whom he or she is in company, should engage in sexual intercourse with that third person, or with any other person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 17 years.

111            Sexual assault in the third degree

                  (1)                    A person who unlawfully assaults, or threatens to inflict grievous or actual bodily harm on, another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 12 years.

                  (2)        A person who, acting in company with any other person, unlawfully assaults, or threatens to inflict grievous or actual bodily harm on, a third person with the intent that the firstmentioned person, or any person with whom he or she is in company, should engage in sexual intercourse with that third person, or with any other person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

112            Sexual intercourse without consent

                  (1)        A person who engages in sexual intercourse with another person without the consent of that other person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.

                  (2)        A person who, acting in company with any other person, engages in sexual intercourse with another person without the consent of that other person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

113            Sexual intercourse with young person

                  (1)        A person who engages in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

                  (2)        A person who engages in sexual intercourse with another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

                  (3)        It is a defence to a prosecution for an offence against subsection (2) if the defendant establishes that—

                  (a)        he or she believed on reasonable grounds that the person on whom the offence is alleged to have been committed was of or above the age of 16 years; or

                  (b)        at the time of the alleged offence—

                              (i)         the person on whom the offence is alleged to have been committed was of or above the age of 10 years; and

                              (ii)        the defendant was not more than 2 years older;

and that that person consented to the sexual intercourse.

113A         Sexual intercourse with person aged at least 16 but under 18—defendant in position of trust or authority

                  (1)       A person (the defendant) commits an offence if:

                  (a)        the defendant engages in sexual intercourse with another person; and

                  (b)        the other person is at least 16, but less than 18, years of age; and

                  (c)        the defendant is in a position of trust or authority in relation to the other person for the purposes of the Criminal Code of the Commonwealth (see section 272.3 of that Code).

Penalty:  Imprisonment for 10 years.

                  (2)       For the purposes of subsection (1):

                  (a)        absolute liability applies to paragraph (1)(b); and

                  (b)        strict liability applies to paragraph (1)(c).

        Note         For absolute liability, see section 24. For strict liability, see section 23.

                  (3)       It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:

                  (a)        at the time of the alleged offence, there existed between the defendant and the other person a marriage that was valid, or recognised as valid, under a law in force in:

                              (i)         the place where the marriage was solemnised; or

                              (ii)        Norfolk Island; or

                              (iii)       the place of the defendant’s residence or domicile; and

                  (b)        when the marriage was solemnised:

                              (i)         the marriage was genuine; and

                              (ii)        the other person was at least 16 years of age.

        Note         A defendant bears a legal burden in relation to the matters in this subsection, see section 59.

                  (4)       It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that, at the time of the alleged offence, the defendant believed on reasonable grounds that the other person was of or above the age of 18 years.

        Note         A defendant bears a legal burden in relation to the matter in this subsection, see section 59.

114            Maintaining a sexual relationship with young person

                  (1)                    In this section:

sexual act means an act that constitutes an offence against this Part, but does not include an act referred to in section 113(2) or 119(2) if the person who committed the act establishes the matters referred to in section 113(3) or 119(3), as the case may be, that would be a defence if the person had been charged with an offence against section 113(2) or 119(2), as the case may be.

young person means a person who is under the age of 16 years.

                  (2)        A person who, being an adult, maintains a sexual relationship with a young person is guilty of an offence.

                  (3)        For subsection (2), an adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on 3 or more occasions.

                  (4)        In proceedings for an offence against subsection (2), evidence of a sexual act is not inadmissible by reason only that it does not disclose the date or the exact circumstances in which the act occurred.

                  (5)        Subject to subsection (6), a person who is convicted of an offence against subsection (2) is liable to imprisonment for 7 years.

                  (6)        If a person convicted under subsection (2) is found, during the course of the relationship, to have committed another offence against this Part in relation to the young person (whether or not the person has been convicted of that offence), the offence against subsection (2) is punishable by imprisonment—

                  (a)        if the other offence is punishable by imprisonment for less than 14 years—for 14 years; or

                  (b)        if the other offence is punishable by imprisonment for a period of 14 years or more—for life.

                  (7)        Subject to subsection (8), a person may be charged in 1 indictment with an offence against subsection (2) and with another offence against this Part alleged to have been committed by the person during the course of the alleged relationship and may be convicted of and punished for any or all of the offences so charged.

                  (8)        Notwithstanding this or any other Act, where a person convicted of an offence against subsection (2) is sentenced to a term of imprisonment for that offence and a term of imprisonment for another offence against this Part committed during the course of the relationship, the court shall not direct that those sentences be cumulative.

                  (9)        A prosecution for an offence against subsection (2) shall not be commenced except by, or with the consent of, the Crown law officer.

                  (10)      However, a person may be arrested for, charged with, or remanded in custody or granted bail for, an offence against subsection (2) before the consent has been given.

115            Act of indecency in the first degree

      A person who inflicts grievous bodily harm on another person with intent to commit an act of indecency on, or in the presence of, that other person, or a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

116            Act of indecency in the second degree

      A person who inflicts actual bodily harm on another person with intent to commit an act of indecency on, or in the presence of, that other person, or a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 12 years.

117            Act of indecency in the third degree

      A person who unlawfully assaults, or threatens to inflict grievous or actual bodily harm on, another person with intent to commit an act of indecency on, or in the presence of, that other person, or a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

118            Act of indecency without consent

                  (1)        A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years.

                  (2)        A person who, acting in company with any other person, commits an act of indecency on, or in the presence of, another person without the consent of that other person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 9 years.

119            Acts of indecency with young people

                  (1)        A person who commits an act of indecency on, or in the presence of, another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 12 years.

                  (2)        A person who commits an act of indecency on, or in the presence of, another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

                  (3)        It is a defence to a prosecution for an offence against subsection (2) if the defendant establishes that—

                  (a)        he or she believed on reasonable grounds that the person on whom the offence is alleged to have been committed was of or above the age of 16 years; or

                  (b)        at the time of the alleged offence—

                              (i)         the person on whom the offence is alleged to have been committed was of or above the age of 10 years; and

                              (ii)        the defendant was not more than 2 years older;

and that that person consented to the committing of the act of indecency.

119A         Act of indecency with person aged at least 16 but under 18—defendant in position of trust or authority

                  (1)       A person (the defendant) commits an offence if:

                  (a)        the defendant commits an act of indecency on, or in the presence of, another person; and

                  (b)        the other person is at least 16, but less than 18, years of age; and

                  (c)        the defendant is in a position of trust or authority in relation to the other person for the purposes of the Criminal Code of the Commonwealth (see section 272.3 of that Code).

Penalty:  Imprisonment for 7 years.

                  (2)       For the purposes of subsection (1):

                  (a)        absolute liability applies to paragraph (1)(b); and

                  (b)        strict liability applies to paragraph (1)(c).

        Note         For absolute liability, see section 24. For strict liability, see section 23.

                  (3)       It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:

                  (a)        at the time of the alleged offence, there existed between the defendant and the other person a marriage that was valid, or recognised as valid, under a law in force in:

                              (i)         the place where the marriage was solemnised; or

                              (ii)        Norfolk Island; or

                              (iii)       the place of the defendant’s residence or domicile; and

                  (b)        when the marriage was solemnised:

                              (i)         the marriage was genuine; and

                              (ii)        the other person was at least 16 years of age.

        Note         A defendant bears a legal burden in relation to the matters in this subsection, see section 59.

                  (4)       It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that, at the time of the alleged offence, the defendant believed on reasonable grounds that the other person was of or above the age of 18 years.

        Note         A defendant bears a legal burden in relation to the matter in this subsection, see section 59.

120            Incest and similar offences

                  (1)        A person who engages in sexual intercourse with another person, being a person who is under the age of 10 years and who is, to the knowledge of the firstmentioned person, his or her lineal descendant, sister, half-sister, brother, half-brother or stepchild, is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

                  (2)        A person who engages in sexual intercourse with another person, being a person who is under the age of 16 years and who is, to the knowledge of the firstmentioned person, his or her lineal descendant, sister, half-sister, brother, half-brother or stepchild, is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

                  (3)        A person who engages in sexual intercourse with another person, being a person who is of or above the age of 16 years and who is, to the knowledge of the firstmentioned person, his or her lineal ancestor, lineal descendant, sister, half-sister, brother or half-brother, is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

                  (4)        A person shall not be convicted of an offence against subsection (2) or (3) if there is evidence that he or she engaged in the act alleged to constitute the offence under the coercion of the person with whom the offence is alleged to have been committed unless the evidence is rebutted by the prosecution.

                  (5)        A person charged with an offence against this section shall, unless there is evidence to the contrary, be presumed to have known at the time of the alleged offence that he or she and the person with whom the offence is alleged to have been committed were related in the way charged.

                  (6)        In this section:

stepchild, in relation to a person, means a person in relation to whom the firstmentioned person stands in place of a parent.

121            Abduction

      A person who abducts another person by force or by any other means or who unlawfully detains another person with the intent that the other person should engage in sexual intercourse with the firstmentioned person or with a third person (whether within Norfolk Island or otherwise) is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

121A          Procuring a young person for a child sex offence

                  (1)       A person (the defendant) commits an offence if:

                  (a)        the defendant procures another person (the young person) for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and

                  (b)        the young person is someone:

                              (i)         who is under the age of 10 years; or

                              (ii)        who the defendant believes to be under the age of 10 years; and

                  (c)        the defendant is of or above the age of 18 years.

Penalty:  Imprisonment for 15 years.

                  (2)       A person (the defendant) commits an offence if:

                  (a)        the defendant procures another person (the young person) for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and

                  (b)        the young person is someone:

                              (i)         who is under the age of 16 years; or

                              (ii)        who the defendant believes to be under the age of 16 years; and

                  (c)        the defendant is of or above the age of 18 years.

Penalty:  Imprisonment for 12 years.

                  (3)       Absolute liability applies to subparagraph (1)(b)(i), paragraph (1)(c), subparagraph (2)(b)(i) and paragraph (2)(c).

        Note         For absolute liability, see section 24.

                  (4)       A person may be found guilty of an offence against subsection (1) or (2) even if it is impossible for the act that constitutes or would constitute a child sex offence to take place.

                  (5)       For the purposes of subsections (1) and (2), it does not matter that the young person is a fictitious person represented to the defendant as a real person.

                  (6)       It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence against subsection (2), he or she believed on reasonable grounds that the young person was of or above the age of 16 years.

        Note         A defendant bears a legal burden in relation to the matter in this subsection, see section 59.

                  (7)       It is not an offence to attempt to commit, or to incite the commission of, an offence against subsection (1) or (2).

121B          Grooming a person for a child sex offence

                  (1)       A person (the defendant) commits an offence if:

                  (a)        the defendant engages in conduct in relation to a person (the groomed person); and

                  (b)        the defendant does so with the intention of making it easier to procure a person (the young person), who need not be the groomed person, for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and

                  (c)        the young person is someone:

                              (i)         who is under the age of 10 years; or

                              (ii)        who the defendant believes to be under the age of 10 years; and

                  (d)       the defendant is of or above the age of 18 years.

Penalty:  Imprisonment for 15 years.

                  (2)       A person (the defendant) commits an offence if:

                  (a)        the defendant engages in conduct in relation to a person (the groomed person); and

                  (b)        the defendant does so with the intention of making it easier to procure a person (the young person), who need not be the groomed person, for an act that constitutes, or would if it occurred in Norfolk Island constitute, a child sex offence (whether or not involving the defendant); and

                  (c)        the young person is someone:

                              (i)         who is under the age of 16 years; or

                              (ii)        who the defendant believes to be under the age of 16 years; and

                  (d)       the defendant is of or above the age of 18 years.

Penalty:  Imprisonment for 12 years.

                  (3)       Absolute liability applies to subparagraph (1)(c)(i), paragraph (1)(d), subparagraph (2)(c)(i) and paragraph (2)(d).

        Note         For absolute liability, see section 24.

                  (4)       A person may be found guilty of an offence against subsection (1) or (2) even if it is impossible for the act that constitutes or would constitute a child sex offence to take place.

                  (5)       For the purposes of subsections (1) and (2), it does not matter that the groomed person or the young person is a fictitious person represented to the defendant as a real person.

                  (6)       It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence against subsection (2), he or she believed on reasonable grounds that the young person was of or above the age of 16 years.

        Note         A defendant bears a legal burden in relation to the matter in this subsection, see section 59.

                  (7)       It is not an offence to attempt to commit, or to incite the commission of, an offence against subsection (1) or (2).

121C          Definitions for procuring and grooming offences

      In sections 121A and 121B:

child sex offence means an offence against:

                  (a)        this Part; or

                  (b)        Part 3.7 (child pornography); or

                  (c)        Part 3.10 (sexual servitude).

procure a person for an act that constitutes, or would constitute, a child sex offence includes:

                  (a)        encourage, entice or recruit the person in relation to such an act; or

                  (b)        induce the person (whether by threats, promises or otherwise) in relation to such an act.

PART 3.7  ¾  CHILD PORNOGRAPHY

122            Using child for production of child pornography etc

                  (1)        A person commits an offence if—

                  (a)        the person uses, offers or procures a child—

                              (i)         for the production of child pornography; or

                              (ii)        for a pornographic performance; and

                  (b)        the child is under 12 years old.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

                  (2)        Absolute liability applies to subsection (1) (b).

                  (3)        A person commits an offence if—

                  (a)        the person uses, offers or procures a child—

                              (i)         for the production of child pornography; or

                              (ii)        for a pornographic performance; and

                  (b)        the child is 12 years old or older.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (4)        Strict liability applies to subsection (3) (b).

                  (5)        In this section:

child pornography means anything that represents—

                  (a)        the sexual parts of a child; or

                  (b)        a child engaged in an activity of a sexual nature; or

                  (c)        someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

pornographic performance means—

                  (a)        a performance by a child engaged in an activity of a sexual nature; or

                  (b)        a performance by someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

Examples of activity of a sexual nature

1              sexual intercourse or other explicit sexual activity (whether real or simulated)

2              a striptease

Note         An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (s 4(2)).

represent means depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.

123            Trading in child pornography

                  (1)        A person commits an offence if the person produces, publishes, offers or sells child pornography.

      Penalty:  1 200 penalty units, imprisonment for 12 years or both.

                  (2)        In this section:

child pornography—see section 122 (5).

124            Possessing child pornography

                  (1)        A person commits an offence if—

                  (a)        the person intentionally possesses pornography; and

                  (b)        the pornography is child pornography.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (2)        Absolute liability applies to subsection (1) (b).

                  (3)        It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds for suspecting that the pornography concerned was child pornography.

                  (4)        In this section:

child pornography—see section 122(5).

125            Using the Internet, etc to deprave young people

                  (1)        A person must not, using electronic means, suggest to a young person that the young person commit or take part in, or watch someone else committing or taking part in, an act of a sexual nature.

      Penalty:

                  (a)        for a 1st offence—imprisonment for 5 years; or

                  (b)        for a 2nd or subsequent offence—imprisonment for 10 years.

                  (2)        A person must not, using electronic means, send or make available pornographic material to a young person.

      Penalty: 100 penalty units, imprisonment for 5 years or both.

                  (3)        It is a defence to a prosecution for an offence against subsection (2) if the defendant—

                  (a)        is an Internet service provider; and

                  (b)        had no knowledge that the defendant’s facilities were used to commit the offence.

                  (4)        It is not a defence to a prosecution for an offence against this section that the young person had consented to—

                  (a)        the suggestion being made; or

                  (b)        the material being sent or made available.

                  (5)        However, it is a defence to a prosecution for an offence against this section if the defendant proves that the defendant believed on reasonable grounds that the young person to whom the suggestion was made, or the material was sent or made available, was at least 16 years old.

                  (6)        In this section:

act of a sexual nature means sexual intercourse or an act of indecency (both within the meaning of Part 3.6).

using electronic means, means using email, Internet chat rooms, SMS messages and real time audio/video.

young person means a person under 16 years old.

126            Consent

                  (1)        For sections 112, 113(3)(b), 118 and 119 (3) (b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—

                  (a)        by the infliction of violence or force on the person, or on a third person who is present or nearby; or

                  (b)        by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or

                  (c)        by a threat to inflict violence or force on, or to use extortion against, the person or another person; or

                  (d)       by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or

                  (e)        by the effect of intoxicating liquor, a drug or an anaesthetic; or

                  (f)        by a mistaken belief as to the identity of that other person; or

                  (g)        by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or

                  (h)        by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or

                  (i)         by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or

                  (j)         by the unlawful detention of the person.

                  (2)                    A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.

                  (3)                    If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.

PART 3.8  ¾  MISCELLANEOUS PROVISIONS FOR PART 3

127            Sexual intercourse—people not to be presumed incapable by reason of age

                  (1)        For this Part, a person shall not, by reason only of his or her age, be presumed to be incapable of engaging in sexual intercourse with another person.

                  (2)        Subsection (1) shall not be construed so as to affect the operation of any law relating to the age when a child can be found guilty of an offence.

128            Marriage no bar to conviction

      The fact that a person is married to a person on whom an offence against section 112 is alleged to have been committed shall be no bar to the conviction of the firstmentioned person for the offence.

129            Alternative verdicts for certain sexual offences

                  (1)        If, on the trial of a person for an offence against section 109(1) or (2) or 115, the jury is satisfied that the accused inflicted actual bodily harm with the intent charged but is not satisfied that the harm was grievous bodily harm, it may find the accused not guilty of the offence charged but guilty of an offence against section 110(1) or (2) or 116, as the case requires.

                  (2)        If, on the trial of a person for an offence against section 109(2), 110(2), 111(2), 112(2) or 118(2), the jury is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence against section 109 (1), 110(1), 111(1), 112(1) or 118(1), it may find the accused not guilty of the offence charged but guilty of an offence against section 109(1), 110(1), 111(1), 112(1) or 118(1), as the case requires.

                  (3)        If, on the trial of a person for an offence against section 109(1) or (2) or 115 the jury is satisfied that the accused inflicted grievous bodily harm but is not satisfied that he or she did so with the intent charged, it may find the accused not guilty of the offence charged but guilty of an offence against section 77, 78 or 83.

                  (4)        If, on the trial of a person for an offence against section 110(1) or (2) or 116, the jury is satisfied that the accused inflicted actual bodily harm but is not satisfied that he or she did so with the intent charged, it may find the accused not guilty of the offence charged but guilty of an offence against section 82.

                  (5)        If, on the trial of a person for an offence against section 113(1), 119(1), 120(1), 121A(1) or 121B(1), the jury—

                  (a)        is not satisfied that the person in relation to whom the offence is alleged to have been committed was under 10 years of age when the offence is alleged to have been committed; but

                  (b)        is satisfied that the accused is guilty of an offence against section 113(2), 119(2), 120(2), 121A(2) or 121B(2), respectively;

the jury may find the accused not guilty of the offence charged but guilty of an offence against section 113(2), 119(2), 120(2), 121A(2) or 121B(2), respectively.

                  (6)       However, a person may be found guilty of an offence in accordance with this section only if the person has been accorded procedural fairness in relation to that finding of guilt.

130            Adding count for act of indecency

                  (1)        In an indictment for an offence against section 112 a count may be added for an offence against section 118.

                  (2)        In an indictment for an offence against section 113A, a count may be added for an offence against section 119A.

131            Indictment for act of indecency

      In an indictment for an offence against section 118, 119 or 119A it shall not be necessary to describe the act constituting the act of indecency with which the accused is charged.

PART 3.9  ¾  FEMALE GENITAL MUTILATION

132            Meaning of female genital mutilation for Part 3.9

      In this Part:

female genital mutilation means—

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

                  (b)        infibulation or similar procedure; or

                  (c)        any other mutilation of the female genital organs.

133            Prohibition of female genital mutilation

                  (1)        A person shall not intentionally perform female genital mutilation on another person.

      Penalty:  imprisonment for 15 years.

                  (2)        It is not a defence to a prosecution for an offence against this section that the person on whom the female genital mutilation was performed, or a parent or guardian of that person, consented to the mutilation.

134            Removal of child from Norfolk Island for genital mutilation

                  (1)        A person shall not take a child from Norfolk Island, or arrange for a child to be taken from Norfolk Island, with the intention of having female genital mutilation performed on the child.

      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 Norfolk Island; and

                  (b)        female genital mutilation was performed on the child while outside Norfolk Island;

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 Norfolk Island with the intention of having female genital mutilation performed on the child.

                  (3)                    In this section:

child means a person under the age of 18 years.

135            Exception—medical procedures for genuine therapeutic purposes

                  (1)        It is not an offence against this Part to perform a medical procedure that has a genuine therapeutic purpose or to take a person, or arrange for a person to be taken, from Norfolk Island with the intention of having such a procedure performed on the person.

                  (2)        A medical procedure has a genuine therapeutic purpose only if—

                  (a)        performed on a person in labour, or who has just given birth, and for medical purposes connected with the labour or birth, by a doctor or midwife; or

                  (b)        it is necessary for the health of the person on whom it is performed and is performed by a doctor.

                  (3)        A medical procedure that is performed as, or as part of, a cultural, religious or other social custom is not of itself to be regarded as being performed for a genuine therapeutic purpose.

136            Exception—sexual reassignment procedures

                  (1)        It is not an offence against this Part to perform a sexual reassignment procedure or to take, or arrange for a person to be taken, from Norfolk Island with the intention of having a sexual reassignment procedure performed on the person.

                  (2)        In subsection (1):

sexual reassignment procedure means a surgical procedure performed by a medical practitioner to give a female person, or a person whose sex is ambivalent, the genital appearance of a person of the opposite sex or of a particular sex (whether male or female).

PART 3.10  ¾  SEXUAL SERVITUDE

137            Meaning of sexual servitude and sexual services for Part 3.10

                  (1)        In this Part:

sexual services means the commercial use or display of the body of the person providing the service for the sexual gratification of others.

sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or a threat, is not free—

                  (a)        to stop providing sexual services; or

                  (b)        to leave the place or area where the person provides sexual services.

                  (2)        For subsection (1), definition of sexual servitude, the question whether, because of the use of force or a threat, a person is not free to stop providing sexual services, or to leave the place or area where the person provides sexual services, is to be decided according to whether a reasonable adult would consider, in the circumstances, that the person is not free to stop or leave.

                  (3)        In this section:

threat means—

                  (a)        a threat of force; or

                  (b)        a threat to cause a person’s deportation; or

                  (c)        a threat of other detrimental action unless there are reasonable grounds for the threat.

138            Sexual servitude offences

                  (1)        A person commits an offence if—

                  (a)        the person’s conduct causes someone else to enter into or remain in sexual servitude; and

                  (b)        the person intends to cause, or is reckless about causing, someone else to enter into or remain in sexual servitude.

      Penalty:

                  (a)        for an aggravated offence—imprisonment for 19 years; or

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

Note Aggravated offence is defined in s 133.

                  (2)        A person commits an offence if the person—

                  (a)        conducts a business that involves the sexual servitude of others; and

                  (b)        knows that, or is reckless about whether, the business involves the sexual servitude of others.

      Penalty:

                  (a)        for an aggravated offence—imprisonment for 19 years; or

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

Note Aggravated offence is defined in s 133.

                  (3)        In this section:

conducts a business includes—

                  (a)        taking part in the management of the business; or

                  (b)        exercising control or direction over the business; or

                  (c)        providing finance for the business.

139            Deceptive recruiting for sexual services

      A person commits an offence if the person, with the intention of inducing someone else to enter into an engagement to provide sexual services, deceives the other person about the fact that the engagement will involve the provision of sexual services.

      Penalty:

                  (a)        for an aggravated offence—imprisonment for 9 years; or

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

        Note         Aggravated offence is defined in s 140.

140            Increased penalty for aggravated offences

                  (1)        An offence against section 138 or 139 is an aggravated offence if the offence was committed against a person younger than 18 years old.

                  (2)        If the prosecution intends to prove an aggravated offence, the charge must allege that the offence was committed against a person younger than 18 years old.

                  (3)        To prove an aggravated offence, the prosecution must prove that the defendant intended to commit, or was reckless about committing, the offence against a person younger than 18 years old.

141            Alternative verdict if aggravated offence not proven

      If, on trial for an aggravated offence against section 138 or 139, the jury is not satisfied that the defendant is guilty of an aggravated offence, but is otherwise satisfied that the defendant is guilty of an offence against the section, it may find the defendant not guilty of the aggravated offence but guilty of an offence against the section.

PART 3.11  ¾  OFFENCES RELATING TO PROPERTY

Division 3.11.1      Money laundering and organised fraud

142            Definitions for Division 3.11.1

deal, with money or other property, means

      (a)        receiving, possessing, concealing or disposing of money or other property; or

                  (b)        importing into or exporting from Norfolk Island money or other property.

proceeds of crime means—

                  (a)        any property derived or realised, directly or indirectly, by anyone from the commission of an indictable offence; or

                  (b)        any property derived or realised, directly or indirectly, by anyone from acts or omissions that—

                              (i)         happened outside Norfolk Island; and

                              (ii)        would, if they had happened in Norfolk Island, have been an indictable offence.

property includes tangible and intangible property and property located in Australia outside Norfolk Island or outside Australia.

unlawful activity means an act or omission that is an offence against the law of Norfolk Island, the Commonwealth, a State, a Territory or a foreign country.

143            Money laundering

      A person commits an offence if—

                  (a)        the person deals with money or other property; and

                  (b)        the money or other property is proceeds of crime; and

                  (c)        the person knows that, or is reckless about the fact that, the money or other property is derived or realised, directly or indirectly, from some form of unlawful activity.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

144            Possession etc of property suspected of being proceeds of crime

                  (1)        A person commits an offence if—

                  (a)        the person deals with money or other property; and

                  (b)        the money or other property is proceeds of crime.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        An offence against this section is a strict liability offence.

145            Organised fraud

                  (1)        A person who engages in organised fraud commits an offence.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

                  (2)        A person is taken to engage in organised fraud only if the person engages in acts or omissions—

                  (a)        that constitute 3 or more public fraud offences; and

                  (b)        from which the person derives substantial benefit.

                  (3)        If, on a trial for an offence against subsection (1) (the offence charged), the trier of fact is not satisfied that the person is guilty of the offence charged but is satisfied that the person is guilty of 1 or more public fraud offences (the other offences), the trier of fact—

                  (a)        must acquit the person of the offence charged; and

                  (b)        may find the person guilty of the other offences.

                  (4)        In this section:

public fraud offence means an offence against section 210 (General dishonesty).

Division 3.11.2      Criminal damage to property

146            Interpretation for Division 3.10.2

                  (1)        In this Division:

property means any real or personal property (other than intangible property), and includes—

                  (a)        a wild animal that is tamed or ordinarily kept in captivity; and

                  (b)        a wild animal that is not tamed or ordinarily kept in captivity but that is—

                              (i)         reduced into the possession of a person who has not lost or abandoned that possession; or

                              (ii)  in the course of being reduced into the possession of a person.

                  (2)                    For this Division, property shall be taken to belong to any person who—

                  (a)        has possession or control of it; or

                  (b)        has any proprietary right or interest in it, other than an equitable interest arising only from an agreement to transfer or grant an interest; or

                  (c)        has a charge on it.

                  (3)                    If any property is subject to a trust, the trustee and any person having a right to enforce the trust shall, for this Division, be taken to be the persons to whom the property belongs.

                  (4)                    The property of a corporation sole shall, for this Division, be taken to belong to the corporation notwithstanding any vacancy in the corporation.

                  (5)        For section 147 (Destroying or damaging property) and section 148 (Arson), a person who destroys or damages property shall be taken to have done so intentionally if he or she acted—

                  (a)        with intent to destroy or damage any property; or

                  (b)        in the knowledge or belief that his or her actions were likely to result in destruction of or damage to property.

                  (6)                    For section 147 (Destroying or damaging property) and section 148 (Arson), a person who destroys or damages property shall be taken to have intended to endanger the life of another person by that destruction or damage if he or she acted—

                  (a)        with intent to endanger the life of any other person; or

                  (b)        in the knowledge or belief that his or her actions were likely to endanger the life of another person.

147            Destroying or damaging property

                  (1)        A person who destroys or damages (otherwise than by means of fire or explosive) any property with intent to endanger the life of another person by that destruction or damage commits an offence.

      Penalty:  imprisonment for 20 years.

                  (2)        A person who dishonestly, with a view to gain for himself or herself or another person, destroys or damages (otherwise than by means of fire or explosive) any property commits an offence.

      Penalty:  300 penalty units, imprisonment for 15 years or both.

                  (3)        A person who, intentionally and without lawful excuse, and by means other than fire or explosive, destroys or damages property that—

                  (a)        belongs to another person, or to himself or herself and another person; and

                  (b)        does not exceed $1 000 in value;

commits an offence.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

148            Arson

                  (1)        A person who destroys or damages by means of fire or explosive any property with intent to endanger the life of another person by that destruction or damage commits an offence.

      Penalty:  imprisonment for 25 years.

                  (2)        A person who dishonestly, with a view to gain for himself or herself or another person, destroys or damages by means of fire or explosive any property commits an offence.

      Penalty:  imprisonment for 20 years.

149            Defacing premises

                  (1)        A person shall not—

                  (a)        affix a placard or paper on any private premises; or

                  (b)        wilfully mark, by means of chalk, paint or any other material, any private premises;

unless the person has first obtained the consent—

                  (c)        if the premises are occupied—of the occupier or person in charge of the premises; or

                  (d)       if the premises are not occupied—of the owner or person in charge of the premises.

      Penalty:  10 penalty units, imprisonment for 6 months or both.

                  (2)        A person shall not, without lawful authority, affix a placard or paper on, or wilfully mark, by means of chalk, paint or any other material, any public street, road, footpath, bus shelter or other property of the Territory or the Commonwealth or of an authority or body constituted by or under a law of the Territory, the Commonwealth or another Territory.

      Penalty:  10 penalty units, imprisonment for 6 months or both.

150            Untrue representations

      A person who knowingly makes in any manner an untrue representation to any other person, being a representation that tends to give rise to apprehension for the safety of any person (including the person making the representation and the person to whom it is made) or property, or both, commits an offence.

      Penalty:  100 penalty units, imprisonment for 5 years or both.

151            Alternative verdict

      If, on the trial of a person for an offence against this Division, the jury is not satisfied that the person is guilty of that offence but is satisfied that the person is guilty of another offence against this Division carrying a lesser penalty than the offence charged, the jury may acquit the person of the offence charged and find him or her guilty of that other offence.

DIVISION 3.11.3  ¾  CONTAMINATION OF GOODS AND RELATED OFFENCES

152            Definitions of contaminate and goods

      In this Division:

contaminate, for goods, includes—

                  (a)        interfere with the goods; or

                  (b)        make it appear that the goods have been contaminated or interfered with.

goods includes a substance—

                  (a)        whether or not for human consumption; and

                  (b)        whether natural or manufactured; and

                  (c)        whether or not incorporated or mixed with other goods.

153            Meaning of economic loss

      In this Part, economic loss caused through public awareness of the contamination of goods, or the possibility of contamination, includes economic loss caused through—

                  (a)        members of the public not buying or using the goods or similar goods; or

                  (b)        steps taken to avoid public alarm or anxiety or to avoid harm to members of the public.

154            Contaminating goods with intent to cause public alarm or economic loss

      A person must not contaminate goods with the intention of—

                  (a)        causing public alarm or anxiety; or

                  (b)        causing economic loss through public awareness of the contamination.

      Penalty:  200 penalty units, imprisonment for 10 years or both.

155            Threatening to contaminate goods with intent to cause public alarm or economic loss

                  (1)        A person must not threaten that goods will be contaminated with the intention of—

                  (a)        causing public alarm or anxiety; or

                  (b)        causing economic loss through public awareness of the possibility of contamination.

      Penalty:  200 penalty units, imprisonment for 10 years or both.

                  (2)        For this section, a threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional.

156            Making false statements about contamination of goods with intent to cause public alarm or economic loss

                  (1)        A person must not make a statement that the person believes to be false with the intention of—

                  (a)        inducing the person to whom the statement is made or others to believe that goods have been contaminated; and

                  (b)        in that way, either—

                              (i)         causing public alarm or anxiety; or

                              (ii)        causing economic loss through public awareness of the contamination, or the possibility of contamination.

      Penalty:  200 penalty units, imprisonment for 10 years or both.

                  (2)        For this section, making a statement includes communicating information by any means.

157            Territorial nexus for offences

      It is immaterial that the conduct of a person forming an offence against this Division happened outside the jurisdiction if the person intended by the conduct—

                  (a)        to cause public alarm or anxiety in Norfolk Island; or

                  (b)        to cause economic loss in Norfolk Island through public awareness of the contamination, or the possibility of contamination.

Division 3.11.4      Offences relating to causing public alarm

158            Acting with intent to cause public alarm

      A person must not, with the intention of causing public alarm or anxiety—

                  (a)        do something that could endanger someone else’s life or health; or

                  (b)        do something that, in the circumstances in which it is done, a reasonable person would suspect could endanger someone else’s life or health (whether or not it could do so).

      Penalty:  200 penalty units, imprisonment for 10 years or both.

159            Threatening to act with intent to cause public alarm

                  (1)        A person must not threaten to do something that could endanger someone else’s life or health with the intention of causing public alarm or anxiety.

      Penalty:  200 penalty units, imprisonment for 10 years or both.

                  (2)        For this section, a threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional.

160            Making false statements with intent to cause public alarm

                  (1)        A person must not make a statement that the person believes to be false with the intention of—

                  (a)        inducing the person to whom the statement is made or others to believe that something that could endanger someone else’s life or health has been done; and

                  (b)        in that way, causing public alarm or anxiety.

      Penalty:  200 penalty units, imprisonment for 10 years or both.

                  (2)        For this section, making a statement includes communicating information by any means.

161            Territorial nexus for offences

      It is immaterial that the conduct of a person forming an offence against this Division happened outside Norfolk Island if the person intended by the conduct to cause public alarm or anxiety in Norfolk Island.

Division 3.11.5      Miscellaneous

162            Removal of sea banks, etc

      A person who without lawful authority or excuse removes any article or material fixed in or placed on the ground and used for securing a sea bank or seawall, or the bank, dam or wall of any stream, drain, aqueduct, marsh, reservoir, pool, port, harbour, dock, quay, wharf, or jetty commits an offence.

      Penalty:  200 penalty units, imprisonment for 7 years or both.

163            Displaying false signals

      A person who, with intent to endanger any vessel, masks, alters or removes any light or signal or displays any false light or signal commits an offence.

Penalty:  200 penalty units, imprisonment for 10 years or both.

164            Removing or concealing buoys, etc

      A person who does any act with intent to cut away, cast adrift, remove, alter, deface, sink, destroy, damage or conceal any vessel, buoy, buoy-rope, perch or mark used or intended for the guidance of sailors or for the purposes of navigation commits an offence.

      Penalty:  200 penalty units, imprisonment for 7 years or both.

165            Forcible entry on land

      A person who enters on land that is in the actual and peaceable possession of another person in a manner likely to cause a breach of the peace commits an offence.

Penalty:  20 penalty units, imprisonment for 1 year or both.

166            Forcible detainer of land

      A person who, being in actual possession of land without any legal right to possession, holds possession of the land against any person legally entitled to possession of the land in a manner likely to cause a breach of the peace commits an offence.

      Penalty:  20 penalty units, imprisonment for 1 year or both.

167            Disclosure of information by public employees

                  (1)        A person who, being an officer of the Administration, publishes or communicates, except to some person to whom he or she is authorised to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of him or her being an officer of the Administration and which it is his or her duty not to disclose, commits an offence.

      Penalty:  50 penalty units, imprisonment for 2 years or both.

                  (2)        A person who, having been an officer of the Administration, publishes or communicates, without lawful authority, any fact or document which came to his or her knowledge, or into his or her possession, by virtue of the person having been an officer of the Administration and which, at the time when he or she ceased to be an officer of the Administration, it was his or her duty not to disclose, commits an offence.

      Penalty:  50 penalty units, imprisonment for 2 years or both.

                  (3)        In this section:

officer of the Administration means—

                  (a)        a public sector employee; or

                  (b)        a person who performs services for the Administration or a public sector agency.

168            Additional offences on government premises

                  (1)        A person who, without reasonable excuse, trespasses on government premises commits an offence.

      Penalty:  1 penalty unit, imprisonment for 1 month or both.

                  (2)        A person who—

                  (a)        engages in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on government premises, or otherwise in relation to the use of government premises; or

                  (b)        being in or on government premises, behaves in an offensive or disorderly manner; or

                  (c)        being in or on government premises, refuses or neglects, without reasonable excuse, to leave those premises on being directed to do so by a police officer or by a person authorised in writing by an Minister or the public sector agency occupying the premises to give directions for this section;

commits an offence.

      Penalty:  2.5 penalty units, imprisonment for 3 months or both.

                  (3)        In this section:

government premises means any land, building or part of a building occupied by the Administration  or a public sector agency.

unreasonable obstruction means anything done by someone that is, or contributes to, an obstruction of or interference with the exercise or enjoyment by other people of their lawful rights or privileges (including rights of passage on public streets) that is unreasonable in all the circumstances (including the place, time, length and nature of the obstruction or interference).

PART 3.12  ¾  ESCAPE PROVISIONS

169            Meaning of lawful custody—periodic detention

      For this Part, an offender serving periodic detention in the offender’s periodic detention period of a sentence of imprisonment under the Sentencing Act 2007 is taken to be in lawful custody only while performing periodic detention.

        Note         The Sentencing Act 2007, provides for the performance of periodic detention.

170            Aiding prisoner to escape

      A person who—

                  (a)        aids another person to escape, or to attempt to escape, from lawful custody in respect of an offence against a law of Norfolk Island, a State or Territory; or

                  (b)        aids another person who has been lawfully arrested in respect of such an offence to escape, or to attempt to escape, from that arrest; or

                  (c)        takes anything into a correctional centre, lockup or another place of lawful detention with intent to facilitate the escape from there of someone else who is detained or in custody in relation to an offence against a law of Norfolk Island, the Commonwealth, a State or Territory;

commits an offence.

      Penalty:  100 penalty units, imprisonment for 5 years or both.

171            Escaping

      A person who has been lawfully arrested or is in lawful custody, in respect of an offence against a law of Norfolk Island, a State or Territory and who escapes from that arrest or custody commits an offence.

      Penalty:  100 penalty units, imprisonment for 5 years or both.

172            Rescuing a prisoner from custody etc

      A person who—

                  (a)        rescues by force a person (other than a person referred to in paragraph (c) or (d)) from lawful custody in respect of an offence against a law of Norfolk Island, a State or Territory with which the person has been charged; or

                  (b)        rescues by force a person who has been lawfully arrested in respect of such an offence with which the person has not been charged from that arrest; or

                  (c)        rescues by force a person who is in lawful custody at a correctional centre, lockup or another place of lawful detention in relation to an offence against a law of Norfolk Island, the Commonwealth, a State or Territory from that centre, lockup or place;

commits an offence.

      Penalty:  imprisonment for 14 years.

173            Person unlawfully at large

      A person who—

                  (a)        in accordance with a permission given under a law of Norfolk Island, the Commonwealth, a State or Territory, leaves a correctional centre, lockup or another place of lawful detention where the person is detained or in custody in relation to an offence against a law of Norfolk Island, the Commonwealth, a State or Territory; and

                  (b)        fails, without reasonable excuse, to return to that correctional centre, lockup or place in accordance with that permission;

commits an offence.

      Penalty:  100 penalty units, imprisonment for 5 years or both.

174            Permitting escape

                  (1)        A person who—

                  (a)        is a police officer; and

                  (b)        is charged for the time being with the custody or detention of another person in respect of an offence against a law of Norfolk Island, a State or Territory; and

                  (c)        wilfully or negligently permits that other person to escape from that custody or detention;

commits an offence.

      Penalty:  100 penalty units, imprisonment for 5 years or both.

                  (2)        A police officer who wilfully or negligently permits a person who has been lawfully arrested in respect of an offence against a law of Norfolk Island, a State or Territory to escape from that arrest commits an offence.

      Penalty:  100 penalty units, imprisonment for 5 years or both.

                  (3)        In this section:

police officer a person who is a member of the police force for the purposes of the Police Act 1931.

175            Harbouring, etc escapee

      A person who harbours, maintains or employs another person knowing that other person to have escaped from lawful custody or detention in respect of an offence against a law of Norfolk Island, a State or Territory commits an offence.

      Penalty:  100 penalty units, imprisonment for 5 years or both.

176            Failure to answer bail, etc—offence

                  (1)        If—

                  (a)        in accordance with a law in force in Norfolk Island (other than the Bail Act 2005), a person arrested in respect of, or charged with, an offence against a law in force in Norfolk Island has been—

                              (i)         admitted to bail on an undertaking; or

                              (ii)        released or discharged on entering into a recognisance, with or without a surety or sureties, on condition;

that he or she will attend, or appear before, a court at a specified time and place or at a time and place to be determined and of which he or she is to be notified; and

                  (b)        he or she fails, without reasonable excuse, to so attend or appear;

the person commits an offence.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        The reference in subsection (1) to an undertaking or a recognisance includes a reference to an undertaking given or a recognisance entered into (as the case requires) following the instituting of an appeal.

CHAPTER 4  ¾  THEFT, FRAUD, BRIBERY AND RELATED OFFENCES

PART 4.1  ¾  INTERPRETATION FOR CHAPTER 4

177            Definitions—chapter 4

      In this chapter:

belongs, in relation to property—see section 178.

cause a loss means cause a loss to someone else.

dishonest means—

                  (a)        dishonest according to the standards of ordinary people; and

                  (b)        known by the defendant to be dishonest according to the standards of ordinary people.

Note 1              The following provisions affect the meaning of dishonest:

·          s 180 (Dishonesty for Part 3.2)

·          s 204 (Dishonesty for Division 3.3.2)

·          s 232 (Dishonesty for Part 4.7).

Note 2              In a prosecution, dishonesty is a matter for the trier of fact (see s 179).

duty, of a person who is a public official, means a function that—

                  (a)        is given to the person as a public official; or

                  (b)        the person holds himself or herself out as having as a public official.

gain means—

                  (a)        a gain in property, whether temporary or permanent; or

                  (b)        a gain by way of the supply of services;

and includes keeping what one has.

loss means a loss in property, whether temporary or permanent, and includes not getting what one might get.

Norfolk Island public official means a person having public official functions for the Administration, or acting in a public official capacity for the Administration, and includes the following:

                  (a)        a member of the Legislative Assembly;

                  (b)        an Minister;

                  (c)        a judge, magistrate or tribunal member;

                  (d)       the registrar or other officer of a court or tribunal;

                  (e)        a public servant;

                  (f)        an officer or employee of a public sector agency;

                  (g)        a holder of a statutory office;

                  (h)        a police officer;

                  (i)         a contractor who exercises a function or performs work for the Administration or a public sector agency.

obtain includes—

                  (a)        obtain for someone else; and

                  (b)        induce a third person to do something that results in someone else obtaining.

Note           The following provisions affect the meaning of obtain:

·         s 191 (9) (Receiving—meaning of stolen property)

·         s 205 (Meaning of obtains for Division 4.3.2)

·         s 212 (6) (Obtaining financial advantage from the Administration)

·         s 233 (Meaning of obtain for Part 4.7).

public duty means a duty of a public official.

public official means a person having public official functions, or acting in a public official capacity, and includes the following:

                  (a)        a Norfolk Island public official;

                  (b)        a member of the legislature of the Commonwealth, a State or another Territory;

                  (c)        a member of the executive of the Commonwealth, a State or another Territory;

                  (d)       a member of the judiciary, the magistracy or a tribunal of the Commonwealth, a State or another Territory;

                  (e)        a registrar or other officer of a court or tribunal of the Commonwealth, a State or another Territory;

                  (f)        an individual who occupies an office under a law of the Commonwealth, a State, another Territory or a local government;

                  (g)        an officer or employee of the Commonwealth, a State, another Territory or a local government;

                  (h)        an officer or employee of an authority or instrumentality of the Commonwealth, a State, another Territory or a local government;

                  (i)         an individual who is otherwise in the service of the Commonwealth, a State, another Territory or a local government (including service as a member of a military or police force or service);

                  (j)         a contractor who exercises a function or performs work for the Commonwealth, a State, another Territory or a local government.

services includes any rights (including rights in relation to, and interests in, property), benefits, privileges or facilities, but does not include rights or benefits that are the supply of goods.

supply includes—

                  (a)        in relation to goods—supply (or re-supply) by way of sale, exchange, lease, hire or hire-purchase; and

                  (b)        in relation to services—provide, grant and confer.

178            Person to whom property belongs for chapter 4

                  (1)        Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust).

                  (2)        This section is subject to section 207 (Money transfers).

        Note         Section 182 (Person to whom property belongs for Part 4.2) affects the meaning of belongs.

179            Dishonesty a matter for trier of fact

      In a prosecution for an offence against this chapter, dishonesty is a matter for the trier of fact.

PART 4.2  ¾  THEFT AND RELATED OFFENCES

Division 4.2.1        Interpretation for Part 4.2

180            Dishonesty for Part 4.2

                  (1)        A person’s appropriation of property belonging to someone else is not dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

                  (2)        However, subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative.

        Note A defendant bears an evidential burden in relation to the matters mentioned in subsections (1) and (2) (see s 58(3)).

                  (3)        A person’s appropriation of property belonging to someone else can be dishonest even if the person or another person is willing to pay for it.

181            Appropriation of property for Part 4.2

                  (1)        Any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property.

                  (2)        If a person has come by property (innocently or not) without committing theft, subsection (1) applies to any later assumption of those rights without consent by keeping or dealing with it as owner.

                  (3)        If property is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights the person believed the person was acquiring is not an appropriation of property because of any defect in the transferor’s title.

182            Person to whom property belongs for Part 4.2

                  (1)        If property belongs to 2 or more people, a reference to the person to whom the property belongs is taken to be a reference to each of them.

                  (2)        If property is subject to a trust—

                  (a)        the person to whom the property belongs includes anyone who has a right to enforce the trust; and

                  (b)        an intention to defeat the trust is an intention to deprive any such person of the property.

                  (3)        Property of a corporation sole belongs to the corporation despite a vacancy in the corporation.

                  (4)        If a person (A) receives property from or on account of someone else (B) and is under a legal obligation to B to retain and deal with the property or its proceeds in a particular way, the property or proceeds belong to B, as against A.

                  (5)        If a person (A) gets property by someone else’s fundamental mistake and is under a legal obligation to make restoration (in whole or part) of the property, its proceeds or its value—

                  (a)        the property or its proceeds belong (to the extent of the obligation and as against A) to the person entitled to restoration (B); and

                  (b)        an intention not to make restoration is—

                              (i)         an intention to permanently deprive B of the property or proceeds; and

                              (ii)        an appropriation of the property or proceeds without B’s consent.

                  (6)        In this section:

fundamental mistake, in relation to property, means—

                  (a)        a mistake about the identity of the person getting the property; or

                  (b)        a mistake about the essential nature of the property; or

                  (c)        a mistake about the amount of any money, if the person getting the money is aware of the mistake when getting the money.

money includes anything that is equivalent to money.

Examples of things equivalent to money

1      a cheque or other negotiable instrument

2      an electronic funds transfer.

183            Intention of permanently depriving for Part 4.2

                  (1)        A person (A) has the intention of permanently depriving someone else (B) of property belonging to B if—

                  (a)        A appropriates property belonging to B without meaning B to permanently lose the property; and

                  (b)        A intends to treat the property as A’s own to dispose of regardless of B’s rights.

                  (2)        For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to treating the property as A’s own to dispose of regardless of B’s rights if, but only if, the borrowing or lending is for a period, and in circumstances, making it equivalent to an outright taking or disposal.

                  (3)        Without limiting this section, if—

                  (a)        A has possession or control (lawfully or not) of property belonging to B; and

                  (b)        A parts with the property under a condition about its return that A may not be able to carry out; and

                  (c)        the parting is done for A’s own purposes and without B’s authority;

the parting amounts to treating the property as A’s own to dispose of regardless of B’s rights.

                  (4)        This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property.

184            General deficiency

      A person may be found guilty of theft of all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were appropriated over a period.

Division 4.2.2  ¾  Indictable offences for Part 4.2

185            Theft

      A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

        Note         For alternative verdict provisions applying to this offence, see s 370, s 371 and s 372.

186            Robbery

      A person commits an offence (robbery) if—

                  (a)        the person commits theft; and

                  (b)        when committing the theft, or immediately before or immediately after committing the theft, the person—

                              (i)         uses force on someone else; or

                              (ii)        threatens to use force then and there on someone else;

with intent to commit theft or to escape from the scene.

      Penalty:  1 400 penalty units, imprisonment for 14 years or both.

        Note         Theft means an offence against s 185 or s 198.

187            Aggravated robbery

      A person commits an offence (aggravated robbery) if the person—

                  (a)        commits robbery in company with 1 or more people; or

                  (b)        commits robbery and, at the time of the robbery, has an offensive weapon with him or her.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

        Note         Robbery means an offence against s 186.

188            Burglary

                  (1)        A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—

                  (a)        to commit theft of any property in the building; or

                  (b)        to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or

                  (c)        to commit an offence in the building that—

                              (i)         involves causing damage to property; and

                              (ii)        is punishable by imprisonment for 5 years or longer.

      Penalty:  1 400 penalty units, imprisonment for 14 years or both.

                  (2)        In subsection (1) (b) and (c), offence includes an offence against a Commonwealth law.

                  (3)        Absolute liability applies to subsection (1) (c) (ii).

                  (4)        For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building—

                  (a)        for a purpose that is not the person’s intended purpose; or

                  (b)        because of fraud, misrepresentation or someone else’s mistake.

                  (5)        In this section:

building includes the following:

                  (a)        a part of any building;

                  (b)        a mobile home or caravan;

                  (c)        a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes.

189            Aggravated burglary

      A person commits an offence (aggravated burglary) if the person—

                  (a)        commits burglary in company with 1 or more people; or

                  (b)        commits burglary and, at the time of the burglary, has an offensive weapon with him or her.

      Penalty:  2 000 penalty units, imprisonment for 20 years or both.

190            Receiving

                  (1)        A person commits an offence (receiving) if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

Penalty:  1 000 penalty units, imprisonment for 10 years or both.

        Note         For an alternative verdict provision applying to receiving, see s 249.

                  (2)        A person cannot be found guilty of both theft (or a related offence) and receiving in relation to the same property if the person retains custody or possession of the property.

                  (3)        For this section—

                  (a)        it is to be assumed that section 185 to section 189 and section 203 had been in force at all times before the commencement of this section; and

                  (b)        property that was appropriated or obtained before the commencement of this section, does not become original stolen property unless the property was appropriated or obtained in circumstances that (apart from paragraph (a)) amounted to an offence against a territory law in force at that time.

                  (4)        In this section:

related offence means any of the following:

                  (a)        robbery;

                  (b)        aggravated robbery;

                  (c)        burglary;

                  (d)       aggravated burglary;

                  (e)        obtaining property by deception.

191            Receiving—meaning of stolen property

                  (1)        For section 190, property is stolen property if it is—

                  (a)        original stolen property; or

                  (b)        previously received property; or

                  (c)        tainted property.

                  (2)        Stolen property may include all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were appropriated or obtained over a period.

                  (3)        Stolen property does not include land appropriated or obtained in the course of theft or obtaining property by deception.

                  (4)        Property is original stolen property if it is—

                  (a)        property, or a part of property, that—

                              (i)         was appropriated—

                  (A)       in Norfolk Island in the course of theft or a related offence; or

                  (B)       in a place outside Norfolk Island in the course of an offence in that place that would have been theft or a related offence if it had happened in Norfolk Island;

whether or not the property, or the part of the property, is in the state it was in when it was appropriated; and

                              (ii)        is in the custody or possession of the person who appropriated it; or

                  (b)        property, or a part of property, that—

                              (i)         was obtained—

                  (A)       in Norfolk Island in the course of obtaining property by deception; or

                  (B)       in a place outside Norfolk Island in the course of an offence in that place that would have been obtaining property by deception if it had happened in Norfolk Island;

whether or not the property, or the part of the property, is in the state it was in when it was obtained; and

                              (ii)        is in the custody or possession of the person who obtained it or for whom it was obtained.

                  (5)        Property is previously received property if it is property that—

                  (a)        was received—

                              (i)         in Norfolk Island in the course of an offence of receiving; or

                              (ii)        in a place outside Norfolk Island in the course of an offence in that place that would have been receiving if it had happened in Norfolk Island; and

                  (b)        is in the custody or possession of the person who received it in the course of that offence.

                  (6)        For subsections (4) and (5), property ceases to be original stolen property or previously received property—

                  (a)        when it is restored to the person from whom it was appropriated or obtained, or to other lawful custody or possession; or

                  (b)        when the person from whom it was appropriated or obtained, or anyone claiming through that person, ceases to have any right to restitution in relation to it.

                  (7)        Property is tainted property if it—

                  (a)        is, in whole or part, the proceeds of sale of, or property exchanged for—

                              (i)         original stolen property; or

                              (ii)        previously received property; and

                  (b)        if paragraph (a)(i) applies—is in the custody or possession of—

                              (i)         for original stolen property appropriated as mentioned in subsection (4)(a)(i)—the person who appropriated it; or

                  (ii)        for original stolen property obtained as mentioned in subsection (4)(b)(i)—the person who obtained it or for whom it was obtained; and

                  (c)        if paragraph (a)(ii) applies—is in the custody or possession of the person who received the previously received property in the course of an offence mentioned in subsection (6)(a).

                  (8)        If, because of the application of section 207 (Money transfers), an amount credited to an account held by a person is property obtained in Norfolk Island in the course of obtaining property by deception (or outside Norfolk Island in the course of an offence that would have been obtaining property by deception if it had happened in Norfolk Island)—

                  (a)        the property is taken to be in the possession of the person while all or any part of the amount remains credited to the account; and

                  (b)        the person is taken to have received the property if the person fails to take the steps that are reasonable in the circumstances to ensure that the credit is cancelled; and

                  (c)        subsection (6) of this section does not apply to the property.

                  (9)        The definition of obtain in section 177 does not apply to this section.

        Note See s 177 for the meaning of obtain for the application of this section to Division 4.3.2 (Obtaining property by deception).

                  (10)      In this section:

account—see section 202.

related offence means any of the following:

                  (a)        robbery;

                  (b)        aggravated robbery;

                  (c)        burglary;

                  (d)       aggravated burglary.

192            Going equipped for theft, etc

                  (1)        A person commits an offence if the person, in any place other than the person’s home, has with the person an article with intent to use it in the course of or in relation to theft or a related offence.

      Penalty:  300 penalty units, imprisonment for 3 years or both.

                  (2)        In this section:

related offence means any of the following:

                  (a)        robbery;

                  (b)        aggravated robbery;

                  (c)        burglary;

                  (d)       aggravated burglary;

                  (e)        an offence against section 195 (Taking etc motor vehicle without consent);

                  (f)        obtaining property by deception.

193            Going equipped with offensive weapon for theft, etc

                  (1)        A person commits an offence if the person, in any place other than the person’s home, has with the person an offensive weapon with intent to use it in the course of or in relation to theft or a related offence.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (2)        In this section:

related offence means any of the following:

                  (a)        robbery;

                  (b)        aggravated robbery;

                  (c)        burglary;

                  (d)       aggravated burglary.

194            Making off without payment

                  (1)        A person commits an offence if—

                  (a)        the person knows he or she is required or expected to make immediate payment for goods or services supplied by someone else; and

                  (b)        the person dishonestly makes off—

                              (i)         without having paid the amount owing; and

                              (ii)        with intent to avoid payment of the amount owing.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        This section does not apply in relation to a supply of goods or services that is contrary to law.

                  (3)        In this section:

immediate payment includes payment when collecting goods in relation to which a service has been supplied.

195            Taking, etc motor vehicle without consent

                  (1)        A person commits an offence if the person—

                  (a)        dishonestly takes a motor vehicle belonging to someone else; and

                  (b)        does not have consent to take the vehicle from a person to whom it belongs.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

        Note 1      Part 2.3 (Circumstances where there is no criminal responsibility) provides for defences that apply to offences under the Code. These include the defence of lawful authority (see s 43).

        Note 2      For the meaning of dishonest, see s 177.

                  (2)        A person commits an offence if—

      (a)        the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and

                  (b)        the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

        Note         For alternative verdict provisions applying to an offence against this section, see s 248.

                  (3)        In this section:

motor vehicle —see the Road Traffic Act 1982 s3.

196            Dishonestly taking Administration property

                  (1)        A person (A) commits an offence if—

                  (a)        on a particular occasion, A dishonestly takes 1 or more items of property belonging to someone else; and

                  (b)        the other person is the Administration; and

                  (c)        A does not have consent to take the item or any of the items from a person who has the authority to consent; and

                  (d)       either—

                              (i)         the property has a replacement value or total replacement value of more than $500 when it is taken; or

                              (ii)        the absence of the item or any of the items from the custody, possession or control of the person who would otherwise have had custody, possession or control would be likely to cause substantial disruption to activities carried on by or for the Administration.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        Absolute liability applies to subsection (1)(b) and (d).

                  (3)        In this section:

Administration includes the following:

                  (a) the ‘public service’;

                  (b) an Administration-owned corporation;

                  (c) a ‘territory instrumentality’;

                  (d) a statutory office holder.

197            Dishonestly retaining Administration property

                  (1)        A person (A) commits an offence if—

                  (a)        on a particular occasion, A takes 1 or more items of property belonging to someone else; and

                  (b)        the other person is the Administration; and

                  (c)        A dishonestly retains any or all of the items; and

                  (d)       A does not have consent to retain the item or any of the items dishonestly retained from a person who has the authority to consent; and

                  (e)        either—

                              (i)         the property dishonestly retained had a replacement value or total replacement value of more than $500 when it was taken; or

                              (ii)        the absence of the item, or any of the items, dishonestly retained from the custody, possession or control of the person who would otherwise have had custody, possession or control is likely to cause substantial disruption to activities carried on by or for the Administration.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        Absolute liability applies to subsection (1) (b) and (d).

                  (3)        In this section:

Administration—see section 196.

Division 4.2.3  ¾  Summary offences for Part 4.2

198            Minor theft

                  (1)        A person commits an offence (also theft) if—

                  (a)        the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property; and

                  (b)        the property has a replacement value of $2 000 or less when it is appropriated.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (2)        Absolute liability applies to subsection (1)(b).

                  (3)        This section does not prevent a person being charged with an offence against section 185 (Theft) if the replacement value of the property appropriated is $2 000 or less.

199            Removal of articles on public exhibition

                  (1)        A person commits an offence if—

                  (a)        the person dishonestly removes an article from premises; and

                  (b)        the premises are at any time open to the public; and

                  (c)        the article is publicly exhibited, or kept for public exhibition, at the premises; and

                  (d)       the person does not have the consent to remove the article from a person entitled to give the consent.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (2)        Absolute liability applies to subsection (1) (b) and (c).

                  (3)        This section does not apply in relation to an article that is publicly exhibited, or kept for public exhibition, for the purpose of selling, or any other commercial dealing with, the article or articles of that kind.

                  (4)        In this section:

premises includes any building or part of a building.

200            Making off without payment—minor offence

                  (1)        A person commits an offence if—

                  (a)        the person knows he or she is required or expected to make immediate payment for goods or services supplied by someone else; and

                  (b)        the person dishonestly makes off—

                              (i)         without having paid the amount owing; and

                              (ii)        with intent to avoid payment of the amount owing; and

                  (c)        the amount owing is $2 000 or less.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (2)        Absolute liability applies to subsection (1) (c).

                  (3)        This section does not apply in relation to a supply of goods or services that is contrary to law.

                  (4)        This section does not prevent a person being charged with an offence against section 194 (Making off without payment) if the amount owing is $2 000 or less.

                  (5)        In this section:

immediate payment includes payment when collecting goods in relation to which a service has been supplied.

201            Unlawful possession of stolen property

                  (1)        A person commits an offence if—

                  (a)        the person—

                              (i)         has property in the person’s possession; or

                              (ii)        has property in someone else’s possession; or

                              (iii)       has property in or on any premises (whether or not the premises belong to or are occupied by the person or the property is there for the person’s own use); or

                              (iv)       gives possession of property to someone who is not lawfully entitled to possession of it; and

                  (b)        the property is reasonably suspected of being stolen property or otherwise unlawfully obtained property.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (2)        Absolute liability applies to subsection (1) (b).

                  (3)        It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds for suspecting that the property concerned was stolen property or otherwise unlawfully obtained property.

                  (4)        In this section:

premises includes any aircraft, building, structure, vehicle or vessel, or any place (whether built on or not), and any part of an aircraft, building, structure, vehicle, vessel or place.

stolen property—see section 191.

PART 4.3  ¾  FRAUDULENT CONDUCT

Division 4.3.1        Interpretation for Part 4.3

202            Definitions—Part 4.3

      In this Part:

account means an account (including a loan account, credit card account or similar account) with a bank or other financial institution.

deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or law, and includes—

                  (a)        a deception about the intention of the person using the deception or anyone else; and

                  (b)        conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

Division 4.3.2        Obtaining property by deception

203            Obtaining property by deception

      A person commits an offence (obtaining property by deception) if the person, by deception, dishonestly obtains property belonging to someone else with the intention of permanently depriving the other person of the property.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

        Note         For alternative verdict provisions applying to obtaining property by deception, see s 249 and s 250.

204            Dishonesty for Division 4.3.2

      A person’s obtaining of property belonging to someone else can be dishonest even if the person or another person is willing to pay for it.

205            Meaning of obtains for Division 4.3.2

                  (1)        For this Division, and for the application of section 190 (Receiving) to this Division, a person obtains property if—

                  (a)        the person obtains ownership, possession or control of it for the person or someone else; or

                  (b)        the person enables ownership, possession or control of it to be retained by the person or someone else; or

                  (c)        the person induces a third person to pass ownership, possession or control of it to someone else; or

                  (d)       the person induces a third person to enable someone else to retain ownership, possession or control of it; or

                  (e)        section 207 (2) or (3) (Money transfers) applies.

                  (2)        The definition of obtain in section 177 does not apply to this Division, or for the application of section 190 (Receiving) to this Division.

206            Intention of permanently depriving—Division 4.3.2

                  (1)        A person (A) has the intention of permanently depriving someone else (B) of property belonging to B if—

                  (a)        A obtains property belonging to B without meaning B to permanently lose the property; and

                  (b)        A intends to treat the property as A’s own to dispose of regardless of B’s rights.

                  (2)        For subsection (1), if A borrows or lends property belonging to B, the borrowing or lending may amount to treating the property as A’s own to dispose of regardless of B’s rights if, but only if, the borrowing or lending is for a period, and in circumstances, making it equivalent to an outright taking or disposal.

                  (3)        Without limiting this section, if—

                  (a)        A has possession or control (lawfully or not) of property belonging to B; and

                  (b)        A parts with the property under a condition about its return that A may not be able to carry out; and

                  (c)        the parting is done for A’s own purposes and without B’s authority;

the parting amounts to treating the property as A’s own to dispose of regardless of B’s rights.

                  (4)        This section does not limit the circumstances in which a person can be taken to have the intention of permanently depriving someone else of property.

207            Money transfers

                  (1)        This section applies for this Division and for the application of section 190 (Receiving) to this Division.

                  (2)        If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by A—

                  (a)        the amount is taken to have been property that belonged to B; and

                  (b)        A is taken to have obtained the property for A with the intention of permanently depriving B of the property.

                  (3)        If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by a third person (C)—

                  (a)        the amount is taken to have been property that belonged to B; and

                  (b)        A is taken to have obtained the property for C with the intention of permanently depriving B of the property.

                  (4)        An amount is transferred from an account (account 1) to another account (account 2) if—

                  (a)        a credit is made to account 2; and

                  (b)        a debit is made to account 1; and

                  (c)        the credit results from the debit or the debit results from the credit.

                  (5)        A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder).

208            General deficiency for Division 4.3.2

      A person may be found guilty of an offence of obtaining property by deception involving all or any part of a general deficiency in money or other property even though the deficiency is made up of a number of particular amounts of money or items of other property that were obtained over a period.

Division 4.3.3  ¾  Other indictable offences for Part 4.3

209            Obtaining financial advantage by deception

      A person commits an offence if the person, by deception, dishonestly obtains a financial advantage from someone else.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

210            General dishonesty

                  (1)        A person commits an offence if—

                  (a)        the person does something with the intention of dishonestly obtaining a gain from someone else; and

                  (b)        the other person is the Administration.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (2)        Absolute liability applies to subsection (1) (b).

                  (3)        A person commits an offence if—

                  (a)        the person does something with the intention of dishonestly causing a loss to someone else; and

                  (b)        the other person is the Administration.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (4)        Absolute liability applies to subsection (3) (b).

                  (5)        A person commits an offence if—

                  (a)        the person—

                              (i)         dishonestly causes a loss, or a risk of loss, to someone else; and

                              (ii)        knows or believes that the loss will happen or that there is a substantial risk of the loss happening; and

                  (b)        the other person is the Administration.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (6)        Absolute liability applies to subsection (5) (b) .

                  (7)        A person commits an offence if—

                  (a)        the person does something with the intention of dishonestly influencing a public official in the exercise of the official’s duty as a public official; and

                  (b)        the public official is a Norfolk Island public official; and

                  (c)        the duty is a duty as a Norfolk Island public official.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (8)        Absolute liability applies to subsection (7) (b) and (c).

                  (9)        In this section:

Administration—see section 196.

211            Conspiracy to defraud

                  (1)        A person commits an offence if the person conspires with someone else with the intention of dishonestly obtaining a gain from a third person.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (2)        A person commits an offence if the person conspires with someone else with the intention of dishonestly causing a loss to a third person.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (3)        A person commits an offence if the person—

                  (a)        conspires with someone else to dishonestly cause a loss, or a risk of loss, to a third person; and

                  (b)        knows or believes that the loss will happen, or that there is a substantial risk of the loss happening.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (4)        A person commits an offence if the person conspires with someone else with the intention of dishonestly influencing a public official in the exercise of the official’s duty as a public official.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (5)        A person commits an offence against this section (conspiracy to defraud) only if—

                  (a)        the person enters into an agreement with at least 1 other person; and

                  (b)        the person and at least 1 other party to the agreement intend to do the thing under the agreement; and

                  (c)        the person or at least 1 other party to the agreement commits an overt act under the agreement.

                  (6)        A person may be found guilty of conspiracy to defraud even if—

                  (a)        it was impossible to obtain the gain, cause the loss or risk of loss, or influence the public official; or

                  (b)        the person and each other party to the agreement is a corporation; or

                  (c)        each other party to the agreement is—

                              (i)         a person who is not criminally responsible; or

                              (ii)        for an agreement to commit an offence—a person for whose benefit or protection the offence exists; or

                  (d)       all other parties to the agreement are acquitted of the offence (unless to find the person guilty would be inconsistent with their acquittal).

                  (7)        A person must not be found guilty of conspiracy to defraud if, before the commission of an overt act under the agreement, the person—

                  (a)        withdrew from the agreement; and

                  (b)        took all reasonable steps to prevent the doing of the thing.

                  (8)        A person must not be found guilty of an offence of conspiracy to defraud in relation to an agreement to commit an offence (an agreed offence) if the person is someone for whose benefit or protection the agreed offence exists.

                  (9)        Any defence, procedure, limitation or qualifying provision applying to an agreed offence applies also to an offence of conspiracy to defraud in relation to the agreed offence.

                  (10)      A court may dismiss a charge of conspiracy to defraud if it considers that the interests of justice require it to dismiss the charge.

                  (11)      A proceeding for an offence of conspiracy to defraud must not be begun without the consent of a Crown law officer.

                  (12)      However, a person may be arrested for, charged with or remanded in custody or released on bail in relation to an offence of conspiracy to defraud before the consent is given.

Division 4.3.4        Summary offences for Part 4.3

212            Obtaining financial advantage from the Administration

                  (1)        A person commits an offence if—

                  (a)        the person engages in conduct that results in the person obtaining a financial advantage from someone else; and

                  (b)        the person knows or believes that the person is not eligible to receive the financial advantage; and

                  (c)        the other person is the Administration.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (2)        Absolute liability applies to subsection (1)(c).

                  (3)        A person commits an offence if—

                  (a)        the person engages in conduct that results in the person obtaining a financial advantage for someone else (B) from a third person; and

                  (b)        the person knows or believes that B is not eligible to receive the financial advantage; and

                  (c)        the third person is the Administration.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (4)        Absolute liability applies to subsection (3) (c).

                  (5)        For subsection (3), a person (A) is taken to have obtained a financial advantage for someone else from Norfolk Island if A induces the Administration to do something that results in the other person obtaining the financial advantage.

                  (6)        The definition of obtain in section 177 does not apply to this section.

                  (7)        In this section:

Administration—see section 196.

213            Passing valueless cheques

                  (1)        A person commits an offence if—

                  (a)        the person obtains property, a financial advantage or other benefit from someone else by passing a cheque; and

                  (b)        the person—

                              (i)         does not have reasonable grounds for believing that the cheque will be paid in full on presentation; or

                              (ii)        intends to dishonestly obtain the property, financial advantage or benefit from someone else.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (2)        A person may be found guilty of an offence against this section even though, when the cheque was passed, there were some funds to the credit of the account on which the cheque was drawn.

PART 4.4  ¾  FALSE OR MISLEADING STATEMENTS, INFORMATION AND DOCUMENTS

214            Making false statements on oath or in statutory declarations

      A person commits an offence if—

                  (a)        the person makes a statement on oath or in a statutory declaration; and

                  (b)        the statement is false; and

                  (c)        the person knows the statement is false.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

215            Making false or misleading statements

                  (1)        A person commits an offence if—

                  (a)        the person makes a statement (whether orally, in a document or in any other way); and

                  (b)        the statement is false or misleading; and

                  (c)        the person knows that the statement—

                              (i)         is false or misleading; or

                              (ii)        omits anything without which the statement is false or misleading; and

                  (d)       the statement is made in or in relation to an application or claim for a statutory entitlement or a benefit; and

                  (e)        any of the following applies:

                              (i)         the statement is made to the Administration;

                              (ii)        the statement is made to a person who is exercising a function under a law of Norfolk Island;

                              (iii)       the statement is made in compliance or purported compliance with a law of Norfolk Island.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (2)        Absolute liability applies to subsection (1) (e) (i), (ii) and (iii).

                  (3)        A person commits an offence if—

                  (a)        the person makes a statement (whether orally, in a document or in any other way); and

                  (b)        the statement is false or misleading; and

                  (c)        the person is reckless about whether the statement—

                              (i)         is false or misleading; or

                              (ii)        omits anything without which the statement is false or misleading; and

                  (d)       the statement is made in or in relation to an application or claim for a statutory entitlement or a benefit; and

                  (e)        any of the following applies:

                              (i)         the statement is made to the Administration;

                              (ii)        the statement is made to a person who is exercising a function under a law of Norfolk Island;

                              (iii)       the statement is made in compliance or purported compliance with a law of Norfolk Island.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (4)        Absolute liability applies to subsection (3) (e) (i), (ii) and (iii).

                  (5)        Subsections (1)(b), (1)(c)(i), (3)(b) and (3)(c)(i) do not apply if the statement is not false or misleading in a material particular.

                  (6)        Subsections (1)(b), (1)(c)(ii), (3)(b) and (3)(c)(ii) do not apply if the omission does not make the statement false or misleading in a material particular.

        Note         The defendant bears an evidential burden in relation to the matters mentioned in ss (5) and (6) (see s 5(3)).

                  (7)        In this section:

statutory entitlement includes an accreditation, approval, assessment, authority, certificate, condition, decision, determination, exemption, licence, permission, permit, registration or other prescribed thing giving a status, privilege or benefit under a law (whether or not required under the law for doing anything).

Administration—see section 196.

        Note         For an alternative verdict provision applying to this offence, see s 374.

216            Giving false or misleading information

                  (1)        A person commits an offence if—

                  (a)        the person gives information to someone else; and

                  (b)        the information is false or misleading; and

                  (c)        the person knows that the information—

                              (i)         is false or misleading; or

                              (ii)        omits anything without which the information is false or misleading; and

                  (d)       any of the following applies:

                        (i)         the person to whom the information is given is the Administration;

                              (ii)        the person to whom the information is given is a person who is exercising a function under a law of Norfolk Island;

                              (iii)       the information is given in compliance or purported compliance with a law of Norfolk Island.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (2)        Absolute liability applies to subsection (1) (d) (i), (ii) and (iii).

                  (3)        Subsection (1)(b) and (c)(i) does not apply if the information is not false or misleading in a material particular.

                  (4)        Subsection (1) (b) and (c) (ii) does not apply if the omission does not make the information false or misleading in a material particular.

                  (5)        Subsection (1) (d) (i) does not apply if, before the information was given by the person to the Administration, the Administration did not take reasonable steps to tell the person about the existence of the offence against subsection (1).

                  (6)        Subsection (1)(d)(ii) does not apply if, before the information was given by a person (A) to the person mentioned in that subparagraph (B), B did not take reasonable steps to tell A about the existence of the offence against subsection (1).

                  (7)        For subsections (5) and (6), it is sufficient if the following form of words is used:

‘Giving false or misleading information is a serious offence’.

                  (8)        In this section:

Administration—see section 196.

217            Producing false or misleading documents

                  (1)        A person commits an offence if—

                  (a)        the person produces a document to someone else; and

                  (b)        the document is false or misleading; and

                  (c)        the person knows that the document is false or misleading; and

                  (d)       the document is produced in compliance or purported compliance with a territory law.

      Penalty:  100 penalty units, imprisonment for 1 year or both.

                  (2)        Subsection (1) (b) and (c) does not apply if the document is not false or misleading in a material particular.

                  (3)        Subsection (1) does not apply to a person who produces a document if the document is accompanied by a signed statement—

                  (a)        stating that the document is, to the signing person’s knowledge, false or misleading in a material particular; and

                  (b)        setting out, or referring to, the material particular in which the document is, to the signing person’s knowledge, false or misleading.

                  (4)        The statement under subsection (3) must be signed by—

                  (a)        the person; or

                  (b)        if the person who produces the document is a corporation—a competent officer of the corporation.

PART 4.5  ¾  BLACKMAIL

218            Meaning of menace for Part 4.5

                  (1)        A menace includes—

                  (a)        an express or implied threat of action that is detrimental or unpleasant to someone else; or

                  (b)        a general threat of detrimental or unpleasant action that is implied because the person making the demand is a public official.

                  (2)        A threat against an individual is a menace only if—

                  (a)        the threat would be likely to cause an individual of normal stability and courage to act unwillingly; or

                  (b)        the threat would be likely to cause the individual to act unwillingly because of a particular vulnerability of which the maker of the threat is aware.

                  (3)        A threat against an entity other than an individual is a menace only if—

                  (a)        the threat would ordinarily cause an unwilling response; or

                  (b)        the threat would be likely to cause an unwilling response because of a particular vulnerability of which the maker of the threat is aware.

219            Meaning of unwarranted demand with a menace for Part 4.5

                  (1)        A person makes an unwarranted demand with a menace of someone else only if the person—

                  (a)        makes a demand with a menace of the other person; and

                  (b)        does not believe that he or she has reasonable grounds for making the demand; and

                  (c)        does not reasonably believe that the use of the menace is a proper means of reinforcing the demand.

                  (2)        The demand need not be a demand for money or other property.

                  (3)        It does not matter whether the menace relates to action to be taken by the person making the demand.

220            Blackmail

      A person commits an offence if the person makes an unwarranted demand with a menace of someone else with the intention of—

                  (a)        obtaining a gain; or

                  (b)        causing a loss; or

                  (c)        influencing the exercise of a public duty.

      Penalty:  1 400 penalty units, imprisonment for 14 years or both.

PART 4.6  ¾  FORGERY AND RELATED OFFENCES

Division 4.6.1        Interpretation for Part 4.6

221            Definitions—Part 4.6

      In this Part:

document includes any of the following:

                  (a)        anything on which there are figures, marks, numbers, perforations, symbols or anything else that can be responded to by a computer, machine or electronic device;

                  (b)        a credit card or debit card;

                  (c)        a formal or informal document.

false documentsee section 222.

222            Meaning of false document, etc for Part 4.6

                  (1)        A document is false only if the document, or any part of the document, purports—

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

                  (e)        to have been changed in any way by a person who did not change it in that way; or

                  (f)        to have been changed in any way on the authority of a person who did not authorise it to be changed in that way; or

                  (g)        to have been made or changed by an existing person who did not exist; or

                  (h)        to have been made or changed on the authority of an existing person who did not exist; or

                  (i)         to have been made or changed on a date on which, at a time or place at which, or otherwise in circumstances in which it was not made or changed.

                  (2)        For this Part, making a false document includes changing the document so as to make it a false document under subsection (1) (whether or not it already was false in some other way).

                  (3)        For this section, a document that purports to be a true copy of another document is to be treated as if it were the original document.

223            Inducing acceptance that document genuine

      For section 224 (Forgery), section 225 (Using false document) and section 226 (Possessing false document)—

                  (a)        a reference to inducing a person to accept a document as genuine includes a reference to causing a computer, machine or electronic device to respond to the document as if it were genuine; and

                  (b)        it is not necessary to prove an intention to induce a particular person to accept the false document as genuine.

Division 4.6.2        Offences for Part 4.6

224            Forgery

      A person commits an offence (forgery) if the person makes a false document with the intention that the person or someone else will use it—

                  (a)        to dishonestly induce another person (C) to accept it as genuine; and

                  (b)        because C accepts it as genuine, to dishonestly—

                              (i)         obtain a gain; or

                              (ii)        cause a loss; or

                              (iii)       influence the exercise of a public duty.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

225            Using false document

      A person commits an offence if the person uses a false document, knowing that it is false, with the intention of—

                  (a)        dishonestly inducing someone else to accept it as genuine; and

                  (b)        because the other person accepts it as genuine, dishonestly—

                              (i)         obtaining a gain; or

                              (ii)        causing a loss; or

                              (iii)       influencing the exercise of a public duty.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

226            Possessing false document 

      A person commits an offence if the person has in the person’s possession a false document, knowing that it is false, with the intention that the person or someone else will use it—

                  (a)        to dishonestly induce another person (C) to accept it as genuine; and

                  (b)        because C accepts it as genuine, to dishonestly—

                              (i)         obtain a gain; or

                              (ii)        cause a loss; or

                              (iii)       influence the exercise of a public duty.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

227            Making or possessing device, etc for making false document 

                  (1)        A person commits an offence if the person makes or adapts a device, material or other thing—

                  (a)        knowing that the thing is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose); and

                  (b)        with the intention that the person or someone else will use the thing to commit forgery.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (2)        A person commits an offence if—

                  (a)        the person knows that a device, material or other thing is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose); and

                  (b)        the person has the device, material or other thing in the person’s possession with the intention that the person or someone else will use it to commit forgery.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (3)        A person commits an offence if the person makes or adapts a device, material or other thing knowing that it is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose).

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (4)        A person commits an offence if the person has in the person’s possession a device, material or other thing knowing that it is designed or adapted for making a false document (whether or not it is designed or adapted for another purpose).

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (5)        Subsection (4) does not apply if the person has a reasonable excuse.

228            False accounting

                  (1)        A person commits an offence if—

                  (a)        the person dishonestly damages, destroys or conceals an accounting document; and

                  (b)        the person does so with the intention of obtaining a gain or causing a loss.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

                  (2)        A person commits an offence if—

                  (a)        the person dishonestly—

                        (i)         makes, or concurs in making, in an accounting document an entry that is false or misleading in a material particular; or

                              (ii)        omits, or concurs in omitting, a material particular from an accounting document; and

            (b)        the person does so with the intention of obtaining a gain or causing a loss.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

                  (3)        A person commits an offence if, in giving information for any purpose—

                  (a)        the person dishonestly produces to someone, or makes use of, an accounting document that is false or misleading in a material particular; and

                  (b)        the person is reckless about whether the accounting document is false or misleading in a material particular; and

                  (c)        the person produces or makes use of the accounting document with the intention of obtaining a gain or causing a loss.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

                  (4)        In this section:

accounting document means any account, record or other document made or required for an accounting purpose.

229            False statement by officer of body

                  (1)        An officer of a body commits an offence if—

                  (a)        the officer dishonestly publishes or concurs in the publishing of a document containing a statement or account that is false or misleading in a material particular; or

                  (b)        the officer is reckless about whether the statement or account is false or misleading in a material particular; and

                  (c)        the officer publishes or concurs in the publishing of the document with the intention of deceiving members or creditors of the body about its affairs.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

                  (2)        In this section:

creditor, of a body, includes a person who has entered into a security for the benefit of the body.

officer, of a body, includes—

                  (a)        any member of the body who is concerned in its management; and

                  (b)        anyone purporting to act as an officer of the body.

PART 4.7  ¾  BRIBERY AND RELATED OFFENCES

Division 4.7.1        Interpretation for Part 4.7

230            DefinitionsPart 4.7

      In this Part:

agent—see section 231.

favour—an agent provides a favour if the agent—

                  (a)        is influenced or affected in the exercise of his or her function as agent; or

                  (b)        does or does not do something as agent, or because of his or her position as agent; or

                  (c)        causes or influences his or her principal, or another agent of the principal, to do or not do something.

function, of an agent, includes a function the agent holds himself or herself out as having as agent.

principal—see section 231.

231            Meaning of agent and principal for Part 4.7

                  (1)        An agent (and the principal of the agent) includes the following:

 

column 1

item

column 2

agent

column 3

principal of the agent

1

a person acting for someone else with that other person’s actual or implied authority

that other person

2

a public official

the government or other body for which the official acts

3

an employee

the employer

4

a lawyer acting for a client

the client

5

a partner

the partnership

6

an officer of a corporation (whether or not employed by it)

the corporation

7

an officer of another body (whether or not employed by it)

the body

8

a consultant to a person

that person

 

                  (2)        A person is an agent or principal if the person is, or has been or intends to be, an agent or principal.

232            Dishonesty for Part 4.7

      The provision of a benefit can be dishonest even if the provision of the benefit is customary in a trade, business, profession or calling.

233            Meaning of obtain for Part 4.7

                  (1)        For this Part, a person (A) is taken to obtain a benefit for someone else (B) if A induces a third person to do something that results in B obtaining the benefit.

                  (2)        The definition of obtain in section 177 does not apply to this Part.

Division 4.7.2        Offences for Part 4.7

234            Bribery 

                  (1)        A person commits an offence if—

                  (a)        the person dishonestly—

                              (i)         provides a benefit to an agent or someone else; or

                              (ii)        causes a benefit to be provided to an agent or someone else; or

                              (iii)       offers t      o provide, or promises to provide, a benefit to an agent or someone else; or

                              (iv)       causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to an agent or someone else; and

                  (b)        the person does so with the intention that the agent will provide a favour.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (2)        An agent commits an offence if—

                  (a)        the agent dishonestly—

                              (i)         asks for a benefit for the agent or someone else; or

                              (ii)        obtains a benefit for the agent or someone else; or

                              (iii)       agrees to obtain a benefit for the agent or someone else; and

                  (b)        the agent does so with the intention—

                              (i)         that the agent will provide a favour; or

                              (ii)        of inducing, fostering or sustaining a belief that the agent will provide a favour.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

235            Other corrupting benefits

                  (1)        A person commits an offence if—

                  (a)        the person dishonestly—

                              (i)         provides a benefit to an agent or someone else; or

                              (ii)        causes a benefit to be provided to an agent or someone else; or

                              (iii)       offers to provide, or promises to provide, a benefit to an agent or someone else; or

                              (iv)       causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to an agent or someone else; and

                  (b)        obtaining, or expecting to obtain, the benefit would tend to influence the agent to provide a favour.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (2)        An agent commits an offence if—

                  (a)        the agent dishonestly—

                              (i)         asks for a benefit for the agent or someone else; or

                              (ii)        obtains a benefit for the agent or someone else; or

                              (iii)       agrees to obtain a benefit for the agent or someone else; and

                  (b)        obtaining, or expecting to obtain, the benefit would tend to influence the agent to provide a favour.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (3)        For this section, it does not matter whether the benefit is in the nature of a reward.

236            Payola

      A person commits an offence if—

                  (a)        the person holds the person out to the public as being engaged in a business or activity of—

                              (i)         making disinterested selections or examinations; or

                              (ii)        expressing disinterested opinions in relation to property or services; and

                  (b)        the person dishonestly asks for or obtains, or agrees to obtain, a benefit for the person or someone else in order to influence the selection, examination or opinion.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

237            Abuse of public office 

                  (1)        A public official commits an offence if—

                  (a)        the official—

                              (i)         exercises any function or influence that the official has as a public official; or

                        (ii)        fails to exercise any function the official has as a public official; or

                              (iii)       engages in any conduct in the exercise of the official’s duties as a public official; or

                              (iv)       uses any information that the official has gained as a public official; and

                  (b)        the official does so with the intention of—

                              (i)         dishonestly obtaining a benefit for the official or someone else; or

                              (ii)        dishonestly causing a detriment to someone else.

      Penalty: 500 penalty units, imprisonment for 5 years or both.

                  (2)        A person commits an offence if—

                  (a)        the person has ceased to be a public official in a particular capacity; and

                  (b)        the person uses any information the person gained in that capacity; and

                  (c)        the person does so with the intention of—

                        (i)         dishonestly obtaining a benefit for the person or someone else; or

                              (ii)        dishonestly causing a detriment to someone else.

      Penalty: 500 penalty units, imprisonment for 5 years or both.

                  (3)        Subsection (2) (a) applies to a person—

                  (a)        whether the person ceased to be a public official as mentioned in the paragraph before, at or after the commencement of this section; and

                  (b)        whether or not the person continues to be a public official in another capacity.

PART 4.8  ¾  IMPERSONATION OR OBSTRUCTION OF PUBLIC OFFICIALS

Division 4.8.1        Indictable offences for Part 4.8

238            Impersonating public official

                  (1)        A person commits an offence if the person—

                  (a)        on a particular occasion, impersonates someone else in the other person’s capacity as a territory public official; and

                  (b)        does so—

                              (i)         knowing it to be in circumstances when the official is likely to be performing his or her duty; and

                              (ii)        with intent to deceive.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        A person commits an offence if the person—

                  (a)        falsely represents the person to be a public official in a particular capacity (whether or not that capacity exists or is fictitious); and

                  (b)        does so in the course of doing an act, or attending a place, in the assumed capacity of such an official.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (3)        A person commits an offence if the person—

                  (a)        either—

                              (i)         impersonates someone else in the other person’s capacity as a public official; or

                              (ii)        falsely represents himself or herself to be a public official in a particular capacity (whether or not that capacity exists or is fictitious); and

                  (b)        does so—

                              (i)         with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty; and

                              (ii)        if paragraph (a) (i) applies—also with intent to deceive.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (4)        To remove any doubt, in this section:

false representation does not include conduct engaged in solely for entertainment.

impersonation does not include conduct engaged in solely for entertainment.

239            Obstructing public official

                  (1)        A person commits an offence if—

                  (a)        the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and

                  (b)        the person knows that the public official is a public official; and

                  (c)        the functions are functions as a public official.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        Absolute liability applies to subsection (1) (c).

                  (3)        Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official.

                  (4)        In this section:

function—in relation to a person who is a public official—means a function that is given to the person as a public official.

        Note         public official – see s. 177

Division 4.8.2        Summary offences for Part 4.8

240            Impersonating police officer

                  (1)        A person who is not a police officer commits an offence if the person wears a uniform or badge of a police officer.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (2)        A person who is not a police officer commits an offence if the person represents himself or herself to be a police officer.

Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (3)        An offence against subsection (1) or (2) is a strict liability offence.

                  (4)        A person who is not a police officer commits an offence if the person wears clothing or a badge reckless about whether the clothing or badge would cause someone to believe that the person is a police officer.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (5)        This section does not apply to conduct engaged in solely for entertainment.

241            Obstructing public official

                  (1)        A person commits an offence if—

                  (a)        the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and

                  (b)        the person is reckless about whether the public official is a public official; and

                  (c)        the public official is a public official; and

                  (d)       the functions are functions as a public official.

      Penalty:  50 penalty units, imprisonment for 6 months or both.

                  (2)        Absolute liability applies to subsection (1) (c) and (d).

                  (3)        Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official.

                  (4)        In this section:

function—see section 239.

PART 4.9  ¾  PROCEDURAL MATTERS FOR CHAPTER 4

Division 4.9.1        General—Part 4.9

242            Stolen property held by dealers, etc—owners rights 

                  (1)        If the owner of stolen property makes a complaint to a magistrate that the property is in the possession of a dealer in second-hand goods or a person (the lender) who has advanced money on the security of the property, the magistrate may—

                  (a)        issue a summons for the appearance of the dealer or lender and for the production of the property; and

                  (b)        order the dealer or lender to give the property to the owner on payment by the owner of the amount (if any) that the magistrate considers appropriate.

                  (2)        A dealer or lender who contravenes an order under subsection (1)(b), or who disposes of any property after being told by the owner of the property that it is stolen, is liable to pay to the owner of the property the full value of the property as decided by a magistrate.

                  (3)        In this section:

related offence means any of the following:

                  (a)        robbery;

                  (b)        aggravated robbery;

                  (c)        burglary;

                  (d)       aggravated burglary;

                  (e)        obtaining property by deception.

stolen property means property appropriated or obtained in the course of theft or a related offence.

243            Stolen property held by police—disposal 

                  (1)        This section applies if—

                  (a)        property is lawfully in the custody of a police officer; and

                  (b)        a person is charged with theft or a related offence in relation to the property; and

                  (c)        the person charged—

                              (i)         cannot be found; or

                              (ii)        is convicted, discharged or acquitted in relation to the charge.

                  (2)        A magistrate may—

                  (a)        make an order for the property to be given to the person who appears to be the owner of the property; or

                  (b)        if there is no-one who appears to be the owner—make any order in relation to the property that the magistrate considers just.

                  (3)        An order under this section does not prevent anyone from recovering the property from the person to whom the property is given under the order if a proceeding for the recovery is begun within 6 months after the day the order is made.

                  (4)        In this section:

related offence—see section 242.

244            Procedure and evidence—theft, receiving, etc

                  (1)        Any number of defendants may be charged in a single indictment with theft or receiving in relation to the same property and the defendants charged may be tried together.

                  (2)        Any number of defendants may be charged in a single indictment with obtaining property by deception or receiving in relation to the same property and the defendants charged may be tried together.

                  (3)        On the trial of a defendant or 2 or more defendants for theft, unless the court otherwise orders, a count on the indictment may include an allegation that the defendant or 1 or more of the defendants stole 2 or more items of property.

                  (4)        On the trial of a defendant or 2 or more defendants for receiving, unless the court otherwise orders, a count on the indictment—

                  (a)        may include an allegation that the defendant or 1 or more of the defendants received 2 or more items of property; and

                  (b)        may include the allegation whether or not all the items of property were received from the same person or at the same time.

                  (5)        If, on the trial of a defendant for receiving, it is proved that the defendant had 4 or more items of stolen property in his or her possession, it must be presumed, unless there is evidence to the contrary, that the defendant—

                  (a)        received the items; and

                  (b)        at the time of receiving them, knew or believed them to be items of stolen property.

                  (6)        The defendant has an evidential burden in relation to evidence to the contrary mentioned in subsection (5).

                  (7)        On the trial of 2 or more defendants for jointly receiving stolen property, the trier of fact may find a defendant guilty if satisfied that the defendant received all or any of the stolen property, whether or not the defendant received it jointly with 1 or more of the other defendants.

                  (8)        On the trial of 2 or more defendants for theft and receiving, the trier of fact may find 1 or more of the defendants guilty of theft or receiving, or may find any of them guilty of theft and any other or others guilty of receiving.

                  (9)        On the trial of 2 or more defendants for obtaining property by deception and receiving, the trier of fact may find 1 or more of the defendants guilty of obtaining property by deception or receiving, or may find any of them guilty of obtaining property by deception and any other or others guilty of receiving.

                  (10)      Subsection (11) applies to a proceeding for the theft of property in the course of transmission (whether by post or otherwise), or for receiving stolen property from such a theft.

                  (11)      A statutory declaration by a person that the person sent, received or failed to receive goods or a postal packet, or that goods or a postal packet when sent or received by the person were or was in a particular state or condition, is admissible as evidence of the facts stated in the declaration—

                  (a)        if and to the extent to which oral evidence to the same effect would have been admissible in the proceeding; and

                  (b)        if, at least 7 days before the day of the beginning of the hearing or trial, a copy of the declaration is given to the defendant, and the defendant has not, at least 3 days before the day of the beginning of the hearing or trial, or within any further time that the court in special circumstances allows, given to the prosecution written notice requiring the attendance at the hearing or trial of the person making the declaration.

                  (12)      In this section:

stolen property—see section 191.

245            Certain proceedings not to be heard together 

      If a person is charged with an offence against section 201 (Unlawful possession of stolen property) and an offence of receiving in relation to the same property, proceedings for the offences must not be heard together.

246            Indictment for offence relating to deeds, money etc

                  (1)        In an indictment for an offence against this chapter in relation to a document of title to land, or a part of a document of title to land, it is sufficient to state that the document or the part of the document is or contains evidence of the title to the land, and to mention the person, or any of the people, with an interest in the land, or in any part of the land.

                  (2)        In an indictment for an offence against this chapter in relation to money or a valuable security, it is sufficient to describe it as a certain amount of money, or a certain valuable security, without specifying a particular kind of money or security, and the description will be sustained by proof of the offence in relation to any money or valuable security even if it is agreed that part of the value of the money or security has been returned, or part was in fact returned.

                  (3)        In this section:

document of title to land includes any document that is or contains evidence of title to the land or an estate in the land.

247            Theft of motor vehicle—cancellation of licence

                  (1)        This section applies if a person is found guilty of any of the following offences:

                  (a)        theft of a motor vehicle;

                  (b)        an offence against section 195 (Taking etc motor vehicle without consent).

                  (2)        The court may, by order—

                  (a)        if the person holds a driver licence—disqualify the person from holding or obtaining a driver licence for the period the court considers appropriate; or

                  (b)        if the person does not hold a driver licence—disqualify the person from obtaining a driver licence for the period the court considers appropriate.

                  (3)        If the court makes an order under this section, the court must give particulars of the order to the Registrar of Motor Vehicles.

                  (4)        In this section:

motor vehicle—see the Road Traffic Act 1982, s.3 .

DIVISION 4.9.2  ¾  ALTERNATIVE VERDICTS—CHAPTER 4

248            Alternative verdicts—theft and taking motor vehicle without consent 

                  (1)        This section applies if, in a prosecution for theft, the trier of fact is not satisfied that the defendant committed theft but is satisfied beyond reasonable doubt that the defendant committed an offence against section 195 (Taking etc motor vehicle without consent).

                  (2)        The trier of fact may find the defendant guilty of the offence against section 318, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

                  (3)        In this section:

theft does not include an offence against section 198 (Minor theft).

249            Alternative verdicts—theft or obtaining property by deception and receiving

                  (1)        If, in a prosecution for theft or obtaining property by deception, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of receiving, the trier of fact may find the defendant guilty of receiving, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

                  (2)        If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed theft or obtaining property by deception, the trier of fact may find the defendant guilty of theft or obtaining property by deception, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

250            Alternative verdicts—theft and obtaining property by deception

                  (1)        If, in a prosecution for an offence of theft, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of obtaining property by deception, the trier of fact may find the defendant guilty of obtaining property by deception, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

                  (2)        If, in a prosecution for an offence of obtaining property by deception, the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence of theft, the trier of fact may find the defendant guilty of theft, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

                  (3)        In this section:

theft does not include an offence against section 198 (Minor theft).

251            Verdict of “theft or receiving” etc 

                  (1)        If, on the trial of a defendant charged with theft and receiving in relation to the same property, the trier of fact is satisfied beyond reasonable doubt that the defendant committed theft or receiving but cannot decide which of the offences the defendant committed, the trier of fact must find the defendant guilty of—

                  (a)        the offence that is more probable; or

                  (b)        if the trier of fact cannot decide which of the offences is more probable—theft.

                  (2)        If, on the trial of a defendant charged with obtaining property by deception and receiving in relation to the same property, the trier of fact is satisfied beyond reasonable doubt that the defendant committed obtaining property by deception or receiving but cannot decide which of the offences the defendant committed, the trier of fact must find the defendant guilty of—

                  (a)        the offence that is more probable; or

                  (b)        if the trier of fact cannot decide which of the offences is more probable—obtaining property by deception.

                  (3)        In this section:

theft does not include an offence against section 198 (Minor theft).

252            Alternative verdicts—making false or misleading statements

                  (1)        This section applies if, in a prosecution for an offence against section 215(1) (Making false or misleading statements), the trier of fact is not satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt that the defendant committed an offence against section 215(3).

                  (2)        The trier of fact may find the defendant guilty of the offence against section 215(3), but only if the defendant has been given procedural fairness in relation to that finding of guilt.

DIVISION 4.9.3  ¾  FORFEITURE—CHAPTER 4

253            Going equipped offences—forfeiture 

                  (1)        If a person is found guilty of an offence against section 192 (Going equipped for theft etc) in relation to an article, the person must forfeit to the Administration the article and any other article of the kind mentioned in that section that is in the person’s custody or possession.

                  (2)        If a person is found guilty of an offence against section 193 (Going equipped with offensive weapon for theft etc) in relation to an offensive weapon, the person must forfeit to the Administration the weapon and any other offensive weapon of the kind mentioned in that section that is in the person’s custody or possession.

254            Unlawful possession offence—forfeiture 

      If a person is found guilty of an offence against section 201 (Unlawful possession of stolen property), the property to which the offence relates is forfeited to the Administration—

                  (a)        if the person found guilty is the owner of the property—when the person is found guilty; or

                  (b)        in any other case—at the end of 90 days after the day the person is found guilty of the offence unless the owner of the property is known.

255            Forgery offences—forfeiture 

                  (1)        This section applies if a person is found guilty of an offence against any of the following sections:

                  (a)        section 224 (Forgery);

                  (b)        section 225 (Using false document);

                  (c)        section 226 (Possessing false document);

                  (d)       section 227 (Making or possessing device etc for making false document).

                  (2)        The court may order, under the Criminal Procedure Act 2007  (Procedure on forfeiture), that any article used in relation to the offence be forfeited to the Administration.

CHAPTER 5  ¾  PROPERTY DAMAGE AND COMPUTER OFFENCES

PART 5.1  ¾  PROPERTY DAMAGE OFFENCES

Division 5.1.1  ¾  Interpretation for Part 5.1

256            Definitions—Part 5.1

      In this Part:

causes damage or another result—a person causes damage or another result if the person’s conduct substantially contributes to the damage or other result.

damage property, includes the following:

                  (a)        destroy the property;

                  (b)        cause the physical loss of the property by interfering with the property (including by removing any restraint over the property or abandoning the property);

                  (c)        cause loss of a use or function of the property by interfering with the property;

                  (d)       deface the property;

                  (e)        for a document—obliterate or make illegible the whole or part of the document;

                  (f)        for an animal—harm or kill the animal;

                  (g)        for a plant or other thing forming part of land—cut it from the land.

property means any property of a tangible nature.

257            Person to whom property belongs

                  (1)        For this Part, property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust).

                  (2)        If property is subject to a trust, a reference to the people to whom it belongs includes a reference to anyone having a right to enforce the trust.

                  (3)        If property belongs to 2 or more people, a reference to the person to whom the property belongs is a reference to all the people.

258            Meaning of threat for Part 5.1

      For this Part—

                  (a)        a threat to a person includes a threat to a group of people; and

                  (b)        fear that a threat will be carried out includes apprehension that it will be carried out.

        Note         For further definition of threat, see the dictionary.

Division 5.1.2        Offences—Part 5.1

259            Damaging property

                  (1)        A person commits an offence if the person—

                  (a)        causes damage to property belonging to someone else; and

                  (b)        intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else.

      Penalty: 1 000 penalty units, imprisonment for 10 years or both.

                  (2)        A conviction for an offence against this section is an alternative verdict to a charge for—

                  (a)        an offence against section 272 (Unauthorised modification of data to cause impairment); or

                  (b)        an offence against section 273 (Unauthorised impairment of electronic communication).

260            Arson

                  (1)        A person commits an offence if the person—

                  (a)        causes damage to a building or vehicle by fire or explosive; and

                  (b)        intends to cause, or is reckless about causing, damage to that or any other building or vehicle.

      Penalty: 1 500 penalty units, imprisonment for 15 years or both.

                  (2)        A person commits an offence if the person—

                  (a)        makes to someone else (person B) a threat to damage, by fire or explosive, a building or vehicle belonging to person B or to another person; and

                  (b)        intends to cause, or is reckless about causing, person B to fear that the threat will be carried out.

      Penalty: 700 penalty units, imprisonment for 7 years or both.

                  (3)        In the prosecution of an offence against subsection (2) it is not necessary to prove that the person threatened (person B) actually feared that the threat would be carried out.

                  (4)        In this section:

building includes—

                  (a)        part of a building; or

                  (b)        any structure (whether or not moveable) that is used, designed or adapted for residential purposes.

vehicle means motor vehicle, motorised vessel or aircraft.

261            Causing bushfires

                  (1)        A person commits an offence if the person—

                  (a)        intentionally or recklessly causes a fire; and

                  (b)        is reckless about the spread of the fire to vegetation on property belonging to someone else.

Penalty: 1 500 penalty units, imprisonment for 15 years or both.

Note           The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)).

                  (2)        In this section:

causes a fire—a person causes a fire if the person does any of the following:

                  (a)        lights a fire;

                  (b)        maintains a fire;

                  (c)        fails to contain or extinguish a fire that was lit by the person if it is not beyond the person’s capacity to contain or extinguish it.

spread, of a fire, means spread of the fire beyond the capacity of the person who caused the fire to contain or extinguish it.

262            Threat to cause property damage—fear of death or serious harm

                  (1)        A person commits an offence if the person—

                  (a)        intentionally makes to someone else a threat to damage property; and

                  (b)        is reckless about causing that person to fear that the carrying out of the threat will kill or cause serious harm to that person or another person.

      Penalty: 700 penalty units, imprisonment for 7 years or both.

        Note         The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20(4)).

                  (2)        In the prosecution of an offence against this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

263            Threat to cause property damage

                  (1)        A person commits an offence if the person—

                  (a)        intentionally makes to someone else a threat to damage property belonging to that person or another person; and

                  (b)        intends that person to fear that the threat will be carried out.

      Penalty: 200 penalty units, imprisonment for 2 years or both.

                  (2)        In the prosecution of an offence against this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

264            Possession of thing with intent to damage property

                  (1)        A person commits an offence if the person possesses a thing with the intention that the person or someone else will use it to damage property belonging to another person.

      Penalty: 300 penalty units, imprisonment for 3 years or both.

                  (2)        In this section:

possess a thing includes—

                  (a)        have control over disposing of the thing (whether or not the thing is in the custody of the person); or

                  (b)        have joint possession of the thing.

Division 5.1.3        Defences—Part 5.1

        Note         A defendant bears an evidential burden in relation to the defences in this Division (see s 58(3)).

265            Consent—Part 5.1 offences

                  (1)        A person (person A) is not criminally responsible for an offence against this Part if, when the conduct required for the offence was carried out—

                  (a)        a person entitled to consent to the damage to the property concerned had consented; or

                  (b)        person A believed that a person entitled to consent to the damage to the property concerned—

                  (i)         had consented; or

                  (ii)        would have consented if the person had known about the damage to the property and its circumstances.

                  (2)        For the application of this defence to an offence against section 261 (Causing bushfires):

damage, to property, means the risk of fire spreading to the property.

266            Claim of right—Part 5.1 offences

                  (1)        A person is not criminally responsible for an offence against this Part if, when engaging in the conduct required for the offence, the person believed that the person had a right or interest in the property concerned that entitled the person to engage in the conduct.

                  (2)        In this section:

right or interest in property includes a right or privilege in or over land or waters, whether created by grant, licence or otherwise.

267            Self-defence

To remove any doubt, section 42 (Self-defence) applies to an offence against this Part.

PART 5.2  ¾  COMPUTER OFFENCES

268            Definitions—Part 5.2

                  In this Part:

access, to data held in a computer, means—

                  (a)        the display of the data by the computer or any other output of the data from the computer; or

                  (b)        the copying or moving of the data to another place in the computer or to a data storage device; or

                  (c)        for a program—the execution of the program.

causes—a person causes unauthorised access to or modification of data, or impairment of electronic communication or of the reliability, security or operation of data, if the person’s conduct substantially contributes to the unauthorised access, modification or impairment.

data includes—

                  (a)        information in any form; and

                  (b)        a program (or part of a program).

data held in a computer includes—

                  (a)        data entered or copied into the computer; and

                  (b)        data held in a removable storage device in the computer; and

                  (c)        data held in a data storage device on a computer network of which the computer forms part.

data storage device means anything containing or designed to contain data for use by a computer.

Examples of data storage devices

1      a disc

2      a file server

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears  s.4(2)

electronic communication means a communication of information in any form by way of guided or unguided electromagnetic energy.

impairment, of electronic communication to or from a computer, includes—

                  (a)        the prevention of the communication, and

                  (b)  the impairment of the communication on an electronic link or network used by the computer;

but does not include a mere interception of the communication.

modification, of data held in a computer, means—

                  (a)        the alteration or removal of the data, or

                  (b)        an addition to the data.

serious computer offence means—

                  (a)        an offence against section 271, section 272 or section 273; or

                  (b)        conduct in another jurisdiction that is an offence in that jurisdiction and would be an offence against section 271, section 272 or section 273 if the conduct happened in Norfolk Island.

269            Limited meaning of access to data, etc

      In this Part, a reference to—

                  (a)        access to data held in a computer; or

                  (b)        modification of data held in a computer; or

                  (c)        impairment of electronic communication to or from a computer;

is limited to access, modification or impairment caused (directly or indirectly) by the execution of a function of a computer.

270            Meaning of unauthorised access, modification or impairment

                  (1)        For this Part, access to or modification of data, or impairment of electronic communication or of the reliability, security or operation of data, by a person is unauthorised if the person is not entitled to cause the access, modification or impairment.

                  (2)        However, the access, modification or impairment is not unauthorised only because the person has an ulterior purpose for causing it.

271            Unauthorised access, modification or impairment with intent to commit serious offence

                  (1)        A person commits an offence if—

                  (a)        the person causes—

                              (i)         unauthorised access to data held in a computer; or

                              (ii)        unauthorised modification of data held in a computer, or

                              (iii)       unauthorised impairment of electronic communication to or from a computer; and

                  (b)        the person knows the access, modification or impairment is unauthorised; and

                  (c)        the person intends to commit, or enable the commission of, a serious offence (by the person or by someone else).

Penalty:  the Penalty applicable if the person had committed, or enabled the commission of, the serious offence in Norfolk Island.

                  (2)        In the prosecution of an offence against this section it is not necessary to prove that the defendant knew that the offence was a serious offence.

                  (3)        A person can be found guilty of an offence against this section—

                  (a)        even if committing the serious offence is impossible; or

                  (b)        whether the serious offence is to be committed at the time of the unauthorised conduct or at a later time.

                  (4)        It is not an offence to attempt to commit an offence against this section.

                  (5)        In this section:

serious offence means an offence punishable by imprisonment for 5 years or longer, and includes an offence in another jurisdiction that would be a serious offence if committed in Norfolk Island.

272            Unauthorised modification of data to cause impairment

                  (1)        A person commits an offence if—

                  (a)        the person causes unauthorised modification of data held in a computer; and

                  (b)        the person knows the modification is unauthorised; and

                  (c)        the person—

                              (i)         intends by the modification to impair access to, or to impair the reliability, security or operation of, data held in a computer; or

                              (ii)        is reckless about any such impairment.

      Penalty: 1 000 penalty units, imprisonment for 10 years or both.

                  (2)        A person can be found guilty of an offence against this section even if there is or will be no actual impairment to access to, or the reliability, security or operation of, data held in a computer.

                  (3)        A conviction for an offence against this section is an alternative verdict to a charge for—

                  (a)        an offence against section 259 (Damaging property); or

                  (b)        an offence against section 273 (Unauthorised impairment of electronic communication).

273            Unauthorised impairment of electronic communication

                  (1)        A person commits an offence if—

                  (a)        the person causes an unauthorised impairment of electronic communication to or from a computer; and

                  (b)        the person knows the impairment is unauthorised; and

                  (c)        the person—

                              (i)   intends to impair electronic communication to or from the computer; or

                              (ii)        is reckless about any such impairment.

      Penalty: 1 000 penalty units, imprisonment for 10 years or both.

                  (2)        A conviction for an offence against this section is an alternative verdict to a charge for—

                  (a)        an offence against section 259 (Damaging property); or

                  (b)        an offence against section 272 (Unauthorised modification of data to cause impairment).

274            Possession of data with intent to commit serious computer offence

                  (1)        A person commits an offence if the person has possession or control of data with the intention of—

                  (a)        committing a serious computer offence; or

                  (b)        enabling the commission of a serious computer offence (whether by the person or by someone else).

      Penalty: 300 penalty units, imprisonment for 3 years or both.

                  (2)        For this section:

possession or control of data includes—

                  (a)        possession of a computer or data storage device holding or containing the data; or

                  (b)        possession of a document in which the data is recorded; or

                  (c)        control of data held in a computer that is in the possession of someone else (whether the computer is in or outside Norfolk Island).

                  (3)        A person can be found guilty of an offence against this section even if committing the serious computer offence is impossible.

                  (4)        It is not an offence to attempt to commit an offence against this section.

275            Producing, supplying or obtaining data with intent to commit serious computer offence

                  (1)        A person commits an offence if the person produces, supplies or obtains data with the intention of—

                  (a)        committing a serious computer offence; or

                  (b)        enabling the commission of a serious computer offence (whether by the person or by someone else).

      Penalty: 300 penalty units, imprisonment for 3 years or both.

                  (2)        For this section:

produce, supply or obtain data includes—

                  (a)        produce, supply or obtain data held or contained in a computer or data storage device; or

                  (b)        produce, supply or obtain a document in which the data is recorded.

                  (3)        A person can be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible.

276            Unauthorised access to or modification of restricted data held in computer

                  (1)        A person commits an offence if—

                  (a)        the person causes unauthorised access to or modification of restricted data held in a computer; and

                  (b)        the person knows the access or modification is unauthorised; and

                  (c)        the person intends to cause the access or modification.

      Penalty: 200 penalty units, imprisonment for 2 years or both.

                  (2)        In this section:

restricted data means data held in a computer to which access is restricted by an access control system associated with a function of the computer.

277         Unauthorised impairment of data held in computer disc, credit card, etc

      A person commits an offence if—

                  (a)        the person causes unauthorised impairment of the reliability, security or operation of data held in a computer disc, credit card or other device used to store data by electronic means; and

                  (b)        the person knows the impairment is unauthorised; and

                  (c)        the person intends to cause the impairment.

      Penalty: 200 penalty units, imprisonment for 2 years or both.

PART 5.3  ¾  SABOTAGE

278            Definitions—Part 5.3

      In this Part:

causes damage or disruption—a person causes damage or disruption if the person’s conduct substantially contributes to the damage or disruption.

damage, to a public facility, means—

                  (a)        damage to the facility or part of the facility; or

                  (b)        disruption to the use or operation of the facility.

property offence means—

                  (a)        an offence against Part 5.1 (Property damage offences); or

                  (b)        conduct in another jurisdiction that is an offence in that jurisdiction and would be an offence against Part 5.1 if the conduct happened in Norfolk Island.

public facility means any of the following (whether publicly or privately owned):

                  (a)        an Administration facility, including premises used by Administration employees for official duties;

                  (b)        a public infrastructure facility, including a facility providing water, sewerage, energy, fuel, communication or other services to the public;

                  (c)        a public information system, including a system used to generate, send, receive, store or otherwise process electronic communications;

                  (d)       a public transport facility, including a vehicle used to transport people or goods;

                  (e)        a public place, including any premises, land or water open to the public.

unauthorised computer function means any of the following (within the meaning of Part 5.2 (Computer offences)):

                  (a)        unauthorised access to data held in a computer;

                  (b)        unauthorised modification of data held in a computer;

                  (c)        unauthorised impairment of electronic communication to or from a computer.

279            Sabotage

                  (1)        A person commits an offence if—

                  (a)        the person causes damage to a public facility by committing a property offence or by causing an unauthorised computer function; and

                  (b)        the person intends to cause—

                              (i)         major disruption to Administration functions; or

                              (ii)        major disruption to the use of services by the public; or

                              (iii)       major economic loss.

      Penalty: 2 500 penalty units, imprisonment for 25 years or both.

                  (2)        To remove any doubt, a person does not commit an offence against this section only because the person takes part in a protest, strike or lockout.

280            Threaten sabotage

                  (1)        A person commits an offence if—

                  (a)        the person intentionally makes to someone else a threat to cause damage to a public facility by committing a property offence or by causing an unauthorised computer function; and

                  (b)        the person intends the other person to fear that the threat will be carried out and will cause—

                              (i)         major disruption to Administration functions; or

                              (ii)        major disruption to the use of services by the public; or

                              (iii)       major economic loss.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

                  (2)        To remove any doubt, a person does not commit an offence against this section only because the person intends to or threatens to take part in a protest, strike or lockout.

                  (3)        In the prosecution of an offence against this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

                  (4)        For this section—

                  (a)        a threat to a person includes a threat to a group of people; and

                  (b)        fear that a threat will be carried out includes apprehension that it will be carried out.

        Note         For further definition of threat, see the dictionary.

 

CHAPTER 6  ¾  SERIOUS DRUG OFFENCES

PART 6.1  ¾  INTERPRETATION FOR CHAPTER 6

281            Definitions—chapter 6

      In this chapter:

cannabis means a substance consisting of or containing—

                  (a)        the fresh or dried parts of a cannabis plant, other than goods that consist completely or mainly of cannabis fibre; or

                  (b)        tetrahydrocannabinol.

cannabis plant means a plant of the genus Cannabis.

commercial quantity—see section 282.

conceal a thing includes conceal or disguise—

                  (a)        the nature, source or location of the thing; or

                  (b)        any movement of the thing; or

                  (c)        someone’s rights in relation to the thing; or

                  (d)       the identity of any owner of the thing.

controlled drug means a prohibited drug within the meaning of the NSW Drug Misuse and Trafficking Act.

controlled plant means a prohibited plant within the meaning of the NSW Drug Misuse and Trafficking Act.

controlled precursor means a substance prescribed by regulation as a controlled precursor.

cultivates a plant—see section 296.

cultivation, of a plant—see section 296.

large commercial quantity—see section 282.

manufacture—see section 287.

manufactures—see section 287.

NSW Drug Misuse and Trafficking Act means the Drug Misuse and Trafficking Act 1985 (NSW) as in force at the commencement of the Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021.

possession, of a thing, includes the following:

                  (a)        receiving or obtaining possession of the thing;

                  (b)        having control over the disposition of the thing (whether or not having custody of the thing);

                  (c)        having joint possession of the thing.

prepare a drug for supply includes pack the drug or separate the drug into discrete units.

sell includes—

                  (a)        barter or exchange; and

                  (b)        give to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise; and

                  (c)        agree to sell.

supply includes—

                  (a)        supply by way of sale or otherwise; and

                  (b)        agree to supply.

trafficable quantity—see section 282.

traffics in a controlled drug—see section 283.

transport includes deliver.

282            Meaning of trafficable quantity, commercial quantity and large commercial quantity

                  (1)       In this chapter:

commercial quantity of a controlled drug, or controlled plant, means the quantity specified for that drug or plant in column 4 of the table in Schedule 1 to the NSW Drug Misuse and Trafficking Act.

large commercial quantity of a controlled drug, or controlled plant, means the quantity specified for that drug or plant in column 5 of the table in Schedule 1 to the NSW Drug Misuse and Trafficking Act.

trafficable quantity of a controlled drug, or controlled plant, means the quantity specified for that drug or plant in column 1 of the table in Schedule 1 to the NSW Drug Misuse and Trafficking Act.

PART 6.2  ¾  TRAFFICKING IN CONTROLLED DRUGS

283            Meaning of trafficking

      For this chapter, a person traffics in a controlled drug if the person—

                  (a)        sells the drug; or

                  (b)        prepares the drug for supply—

                              (i)         with the intention of selling any of it; or

                              (ii)        believing that someone else intends to sell any of it; or

                  (c)        transports the drug—

                              (i)         with the intention of selling any of it; or

                              (ii)        believing that someone else intends to sell any of it; or

                  (d)       guards or conceals the drug with the intention of—

                              (i)         selling any of it; or

                              (ii)        helping someone else to sell any of it; or

                  (e)        possesses the drug with the intention of selling any of it; and

                  (f)        with respect to a controlled drug that is also controlled by the Dangerous Drugs Act 1927, the person is not the holder of a licence under that Act permitting the person to do that thing.

284            Trafficking in controlled drug

                  (1)        A person commits an offence if the person traffics in a large commercial quantity of a controlled drug.

      Penalty:  imprisonment for life.

                  (2)        Absolute liability applies to the circumstance that the quantity trafficked in was a large commercial quantity.

                  (3)        A person commits an offence if the person traffics in a commercial quantity of a controlled drug.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (4)        Absolute liability applies to the circumstance that the quantity trafficked in was a commercial quantity.

                  (5)        A person commits an offence if the person traffics in a trafficable quantity of cannabis.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (6)        Absolute liability applies to the circumstance that the quantity trafficked in was a trafficable quantity.

                  (7)        A person commits an offence if the person traffics in a controlled drug other than cannabis.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (8)        A person commits an offence if the person traffics in cannabis.

      Penalty:  300 penalty units, imprisonment for 3 years or both.

285            Trafficking offence—presumption if trafficable quantity possessed etc

                  (1)        If, in a prosecution for an offence against section 284, it is proved that the defendant—

                  (a)        prepared a trafficable quantity of a controlled drug for supply; or

                  (b)        transported a trafficable quantity of a controlled drug; or

                  (c)        guarded or concealed a trafficable quantity of a controlled drug; or

                  (d)       possessed a trafficable quantity of a controlled drug;

it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.

        Note         A defendant bears a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59 (c)).

                  (2)        This section does not apply to a single charge under section 310 (Single offence for trafficking etc on different occasions) if the conduct on each occasion to which the charge relates did not involve a trafficable quantity of the controlled drug.

286            Complicity, incitement and conspiracy offences do not apply to buyers of drugs

      A person does not commit any of the following offences only because the person bought or intended to buy a controlled drug from someone else:

                  (a)        an offence under section 45 (Complicity and common purpose);

                  (b)        an offence against section 47 (Incitement);

                  (c)        an offence against section 48 (Conspiracy).

        Note         For additional offences relating to possessing etc., dangerous drugs, see the Dangerous Drugs Act 1927.

PART 6.3  ¾  MANUFACTURING CONTROLLED DRUGS AND PRECURSORS

287            Meaning of manufacture

      In this chapter:

manufacture—the manufacture of a substance is any process by which the substance is produced (other than the cultivation of a plant), and includes the process of—

                  (a)        extracting or refining it; or

                  (b)        transforming it into a different substance.

manufactures—a person manufactures a substance if the person—

                  (a)        engages in its manufacture; or

                  (b)        exercises control or direction over its manufacture; or

                  (c)        provides or arranges finance for its manufacture; and

                  (d)       does so without a licence under the Dangerous Drugs Act 1927.

288            Manufacturing controlled drug for selling

                  (1)        A person commits an offence if the person manufactures a large commercial quantity of a controlled drug—

                  (a)        with the intention of selling any of it; or

                  (b)        believing that someone else intends to sell any of it.

      Penalty:  imprisonment for life.

                  (2)        Absolute liability applies to the circumstance that the quantity manufactured was a large commercial quantity.

                  (3)        A person commits an offence if the person manufactures a commercial quantity of a controlled drug—

                  (a)        with the intention of selling any of it; or

                  (b)        believing that someone else intends to sell any of it.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (4)        Absolute liability applies to the circumstance that the quantity manufactured was a commercial quantity.

                  (5)        A person commits an offence if the person manufactures a controlled drug—

                  (a)        with the intention of selling any of it; or

                  (b)        believing that someone else intends to sell any of it.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

289            Manufacturing offence—presumption if trafficable quantity manufactured

      If, in a prosecution for an offence against section 288 (Manufacturing controlled drug for selling), it is proved that the defendant manufactured a trafficable quantity of a controlled drug, it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.

290            Manufacturing controlled drug

      A person commits an offence if the person manufactures a dangerous drug without a licence issued under the Dangerous Drugs Act 1927.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

291            Selling controlled precursor for manufacture of controlled drug

                  (1)        A person commits an offence if the person sells a large commercial quantity of a controlled precursor believing that the person to whom it is sold, or someone else, intends to use any of it to manufacture a controlled drug.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (2)        Absolute liability applies to the circumstance that the quantity sold was a large commercial quantity.

                  (3)        A person commits an offence if the person sells a commercial quantity of a controlled precursor believing that the person to whom it is sold, or someone else, intends to use any of it to manufacture a controlled drug.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

                  (4)        Absolute liability applies to the circumstance that the quantity sold was a commercial quantity.

                  (5)        A person commits an offence if the person sells a controlled precursor believing that the person to whom it is sold, or someone else, intends to use any of it to manufacture a controlled drug.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

292            Manufacturing controlled precursor for manufacture of controlled drug

                  (1)        A person commits an offence if the person manufactures a large commercial quantity of a controlled precursor—

                  (a)        with the intention of manufacturing a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (2)        Absolute liability applies to the circumstance that the quantity manufactured was a large commercial quantity.

                  (3)        A person commits an offence if the person manufactures a large commercial quantity of a controlled precursor—

                  (a)        with the intention of selling any of it to someone else; and

                  (b)        believing that the other person intends to use it to manufacture a controlled drug.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (4)        Absolute liability applies to the circumstance that the quantity manufactured was a large commercial quantity.

                  (5)        A person commits an offence if the person manufactures a commercial quantity of a controlled precursor—

                  (a)        with the intention of manufacturing a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

                  (6)        Absolute liability applies to the circumstance that the quantity manufactured was a commercial quantity.

                  (7)        A person commits an offence if the person manufactures a commercial quantity of a controlled precursor—

                  (a)        with the intention of selling any of it to someone else; and

                  (b)        believing that the other person intends to use it to manufacture a controlled drug.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

                  (8)        Absolute liability applies to the circumstance that the quantity manufactured was a commercial quantity.

                  (9)        A person commits an offence if the person manufactures a controlled precursor—

                  (a)        with the intention of manufacturing a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

                  (10)      A person commits an offence if the person manufactures a controlled precursor—

                  (a)        with the intention of selling any of it to someone else; and

                  (b)        believing that the other person intends to use it to manufacture a controlled drug.

      Penalty:  700 penalty units imprisonment for 7 years or both.

293            Possessing controlled precursor

                  (1)        A person commits an offence if the person possesses a large commercial quantity of a controlled precursor—

                  (a)        with the intention of using any of it to manufacture a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (2)        Absolute liability applies to the circumstance that the quantity possessed was a large commercial quantity.

                  (3)        A person commits an offence if the person possesses a commercial quantity of a controlled precursor—

                  (a)        with the intention of using any of it to manufacture a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.

      Penalty:  1 500 penalty units, imprisonment for 15 years or both.

                  (4)        Absolute liability applies to the circumstance that the quantity possessed was a commercial quantity.

                  (5)        A person commits an offence if the person possesses a controlled precursor—

                  (a)        with the intention of using any of it to manufacture a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

294            Supplying substance, equipment or instructions for manufacturing controlled drug

                  (1)        A person commits an offence if the person supplies to someone else any substance, any equipment, or any document containing instructions for manufacturing a controlled drug—

                  (a)        believing that the other person intends to use it to manufacture a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that the other person or someone else intends to sell any of the manufactured drug.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

                  (2)        A person commits an offence if the person possesses any substance, any equipment, or any document containing instructions for manufacturing a controlled drug—

                  (a)        with the intention of supplying it to someone else; and

                  (b)        believing that the other person intends to use it to manufacture a controlled drug; and

                  (c)        with the intention of selling any of the manufactured drug or believing that the other person or someone else intends to sell any of the manufactured drug.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

295            Possessing substance, equipment or instructions for manufacturing controlled drug

      A person commits an offence if the person possesses any substance, any equipment, or any document containing instructions for manufacturing a controlled drug—

                  (a)        with the intention of using it to manufacture a controlled drug; and

                  (b)        with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

        Note         For additional offences relating to possessing certain drugs, see the Dangerous Drugs Act 1927.

PART 6.4  ¾  CULTIVATING CONTROLLED PLANTS

296            Meaning of cultivate

      In this chapter:

cultivates—a person cultivates a plant if the person—

                  (a)        engages in its cultivation; or

                  (b)        exercises control or direction over its cultivation; or

                  (c)        provides or arranges finance for its cultivation

      and does so without a licence under the Dangerous Drugs Act 1927.

cultivation, of a plant, includes—

                  (a)        planting a seed, seedling or cutting of the plant or transplanting the plant; or

                  (b)        nurturing, tending or growing the plant; or

                  (c)        guarding or concealing the plant (including against interference or discovery by humans or natural predators); or

                  (d)       harvesting the plant (including picking any part of the plant or separating any resin or other substance from the plant).

product, of a plant, includes—

                  (a)        a seed of the plant; and

                  (b)        a part of the plant (whether live or dead); and

                  (c)        a substance separated from the plant.

297            Cultivating controlled plant for selling

                  (1)        A person commits an offence if the person cultivates a large commercial quantity of a controlled plant—

                  (a)        with the intention of selling any of the plants or their products; or

                  (b)        believing that someone else intends to sell any of the plants or their products.

      Penalty:  imprisonment for life.

                  (2)        Absolute liability applies to the circumstance that the quantity cultivated was a large commercial quantity.

                  (3)        A person commits an offence if the person cultivates a commercial quantity of a controlled plant—

                  (a)        with the intention of selling any of the plants or their products; or

                  (b)        believing that someone else intends to sell any of the plants or their products.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (4)        Absolute liability applies to the circumstance that the quantity cultivated was a commercial quantity.

                  (5)        A person commits an offence if the person cultivates a trafficable quantity of cannabis plants—

                  (a)        with the intention of selling any of the plants or their products; or

                  (b)        believing that someone else intends to sell any of the plants or their products.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (6)        Absolute liability applies to the circumstance that the quantity cultivated was a trafficable quantity.

                  (7)        A person commits an offence if the person cultivates a controlled plant (other than a cannabis plant)—

                  (a)        with the intention of selling it or any of its products; or

                  (b)        believing that someone else intends to sell it or any of its products.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (8)        A person commits an offence if the person cultivates a cannabis plant—

                  (a)        with the intention of selling it or any of its products; or

                  (b)        believing that someone else intends to sell it or any of its products.

      Penalty:  300 penalty units, imprisonment for 3 years or both.

298            Cultivating offence—presumption if trafficable quantity cultivated

      If, in a prosecution for an offence against section 297 (Cultivating controlled plant for selling), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the plant or its products required for the offence.

299            Cultivating controlled plant

                  (1)        A person commits an offence if the person cultivates a controlled plant other than a cannabis plant.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (2)        A person commits an offence if the person—

                  (a)        cultivates (artificially or otherwise) 3 or more cannabis plants; or

                  (b)        artificially cultivates 1 or 2 cannabis plants.

      Penalty:  200 penalty units, imprisonment for 2 years or both.

                  (3)        In this section:

artificially cultivate means—

                  (a)        hydroponically cultivate; or

                  (b)        cultivate with the application of an artificial source of light or heat.

300            Selling controlled plant

                  (1)        A person commits an offence if the person sells a large commercial quantity of a controlled plant.

      Penalty:  imprisonment for life.

                  (2)        Absolute liability applies to the circumstance that the quantity sold was a large commercial quantity.

                  (3)        A person commits an offence if the person sells a commercial quantity of a controlled plant.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (4)        Absolute liability applies to the circumstance that the quantity sold was a commercial quantity.

                  (5)        A person commits an offence if the person sells a trafficable quantity of cannabis plants.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (6)        Absolute liability applies to the circumstance that the quantity sold was a trafficable quantity.

                  (7)        A person commits an offence if the person sells a controlled plant other than a cannabis plant.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (8)        A person commits an offence if the person sells a cannabis plant.

      Penalty:  300 penalty units, imprisonment for 3 years or both.

301            Supplying plant material, equipment or instructions for cultivating controlled plant

                  (1)        A person commits an offence if the person supplies to someone else any controlled plant, any product of a controlled plant, any equipment, or any document containing instructions for cultivating a controlled plant—

                  (a)        believing that the other person intends to use it to cultivate a controlled plant; and

                  (b)        with the intention of selling any of the cultivated plant or believing that the other person or someone else intends to sell any of the cultivated plant.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

                  (2)        A person commits an offence if the person possesses any controlled plant, any product of a controlled plant, any equipment, or any document containing instructions for cultivating a controlled plant—

                  (a)        with the intention of supplying it to someone else; and

                  (b)        believing that the other person intends to use it to cultivate a controlled plant; and

                  (c)        with the intention of selling any of the cultivated plant or believing that the other person or someone else intends to sell any of the cultivated plant.

      Penalty:  700 penalty units, imprisonment for 7 years or both.

302            Possessing plant material, equipment or instructions for cultivating controlled plant

      A person commits an offence if the person possesses any controlled plant, any product of a controlled plant, any equipment, or any document containing instructions for cultivating a controlled plant—

                  (a)        with the intention of using it to cultivate controlled plants; and

                  (b)        with the intention of selling any of the cultivated plants or their products or believing that someone else intends to sell any of the cultivated plants or their products.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

PART 6.4A  ¾    USE OF DRUGS

302A         Use of controlled drugs or hallucinogenic substances

                  (1)        A person shall not, without lawful authority, use, take, or consume, a controlled drug or a controlled hallucinogenic substance.

Penalty:     (a)        20 penalty units; or

                  (b)        2 years imprisonment.

                  (2)        For the purposes of this section, it is a defence to the charge if the person proves that, at the time of the alleged offence, he believed, and had reasonable grounds for believing, that he was using, taking or consuming, as the case may be, the substance in accordance with the directions contained in a prescription given in writing by a legally qualified medical practitioner in respect of the person or with the directions of a legally qualified dentist.

PART 6.5  ¾  DRUG OFFENCES INVOLVING CHILDREN

303            Supplying controlled drug to child for selling

                  (1)        A person commits an offence if—

                  (a)        the person—

                        (i)         supplies a commercial quantity of a controlled drug to a child; or

                              (ii)        possesses a commercial quantity of a controlled drug with the intention of supplying any of the drug to a child; and

                  (b)        the person does so believing that the child intends to sell any of the drug.

      Penalty:  imprisonment for life.

                  (2)        Absolute liability applies to—

                  (a)        the circumstance that the quantity supplied or possessed was a commercial quantity; and

                  (b)        the circumstance that the person to whom the controlled drug was supplied or intended to be supplied was a child.

                  (3)        A person commits an offence if—

                  (a)        the person—

                              (i)         supplies a controlled drug to a child; or

                              (ii)        possesses a controlled drug with the intention of supplying any of the drug to a child; and

                  (b)        the person does so believing that the child intends to sell any of the drug.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (4)        Absolute liability applies to the circumstance that the person to whom the controlled drug was supplied or intended to be supplied was a child.

                  (5)        It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant—

                  (a)        considered whether or not the person to whom the controlled drug was supplied or intended to be supplied was a child; and

                  (b)        had no reasonable grounds for believing that the person was a child.

304            Supplying offence—presumption if trafficable quantity supplied, etc

                  (1)        If, in a prosecution for an offence against section 303 (Supplying controlled drug to child for selling), it is proved that the defendant—

                  (a)        supplied a trafficable quantity of a controlled drug to a child; or

                  (b)        possessed a trafficable quantity of a controlled drug with the intention of supplying any of it to a child;

it is presumed, unless the contrary is proved, that the defendant had the belief about the sale of the drug by the child required for the offence.

                  (2)        This section does not apply to a single charge under section 310 (Single offence for trafficking etc on different occasions) if the conduct on each occasion to which the charge relates did not involve a trafficable quantity of the controlled drug.

305            Procuring child to traffic in controlled drug

                  (1)        A person commits an offence if the person procures a child to traffic in a commercial quantity of a controlled drug.

      Penalty:  imprisonment for life.

                  (2)        Absolute liability applies to—

                  (a)        the circumstance that the person procured was a child; and

                  (b)        the circumstance that the quantity the child was procured to traffic in was a commercial quantity.

                  (3)        Subsection (1) applies whether the child was procured to traffic in a commercial quantity of a controlled drug on a single occasion or over a period.

                  (4)        A person commits an offence if the person procures a child to traffic in a controlled drug.

      Penalty:  2 500 penalty units, imprisonment for 25 years or both.

                  (5)        Absolute liability applies to the circumstance that the person procured was a child.

                  (6)        It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant—

                  (a)        considered whether or not the person procured was a child; and

                  (b)        had no reasonable grounds for believing that the person was a child.

                  (7)        In this section:

procures a child to traffic in a controlled drug—a person procures a child to traffic in a controlled drug if—

                  (a)        the person procures the child to sell the drug; or

                  (b)        the person, with the intention of selling any of the drug or believing that someone else intends to sell any of the drug, procures the child to prepare the drug for supply or to transport the drug; or

                  (c)        the person, with the intention of selling any of the drug or assisting someone else to sell any of the drug, procures the child to guard or conceal the drug.

306            Supplying controlled drug to child

                  (1)        A person commits an offence if the person—

                  (a)        supplies a controlled drug other than cannabis to a child; or

                  (b)        possesses a controlled drug other than cannabis with the intention of supplying it to a child.

      Penalty:  2 000 penalty units, imprisonment for 20 years or both.

                  (2)        A person commits an offence if the person—

                  (a)        supplies a trafficable quantity of cannabis to a child; or

                  (b)        possesses a trafficable quantity of cannabis with the intention of supplying it to a child.

      Penalty:  1 000 penalty units, imprisonment for 10 years or both.

                  (3)        Absolute liability applies to the circumstance that the quantity supplied or possessed was a trafficable quantity.

                  (4)        A person commits an offence if the person—

                  (a)        supplies cannabis to a child; or

                  (b)        possesses cannabis with the intention of supplying it to a child.

      Penalty:  500 penalty units, imprisonment for 5 years or both.

                  (5)        For this section, absolute liability applies to the circumstance that the person to whom the drug was supplied, or intended to be supplied, was a child.

                  (6)        It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant—

                  (a)        considered whether or not the person to whom the controlled drug was supplied or intended to be supplied was a child; and

                  (b)        had no reasonable grounds for believing that the person was a child.

307            Children not criminally responsible for offences against Part 7.5

      A child is not criminally responsible for an offence against this Part.

PART 6.6  ¾  GENERAL PROVISIONS FOR DRUG OFFENCES

308            Application—Part 6.6

      This Part applies to offences against this chapter other than Part 6.7 (Offences relating to property derived from drug offences).

309            Carrying on business of trafficking

                  (1)        This section applies to an offence against—

                  (a)        section 284(1) (which is about trafficking in a large commercial quantity of a controlled drug); or

                  (b)        section 284 (3) (which is about trafficking in a commercial quantity of a controlled drug); or

                  (c)        section 284 (5) (which is about trafficking in a trafficable quantity of cannabis); or

                  (d)       section 303 (1) (which is about supplying a commercial quantity of a controlled drug to a child for selling).

                  (2)        For the application of this section to an offence against section 303(1), a reference to trafficking in drugs is a reference to supplying drugs.

                  (3)        In a prosecution for an offence, the prosecution may establish that the defendant trafficked in the quantity of a controlled drug required for the offence (the required quantity), without proof of trafficking in the required quantity on a particular occasion, by establishing that—

                  (a)        the person carried on a business of trafficking in controlled drugs; and

                  (b)        the required quantity of the controlled drug (or a combination of controlled drugs) was trafficked over repeated transactions in the course of the business.

                  (4)        For a person’s conduct to be the carrying on of a business, the trier of fact must be satisfied that the conduct establishes that the person was engaged in an organised commercial activity involving repeated transactions.

                  (5)        In a prosecution in which this section is relied on—

                  (a)        it is not necessary for the prosecution to state or prove the exact date of each transaction or the exact quantity trafficked in each transaction; and

                  (b)        the prosecution may not rely on a transaction if the defendant has already been tried and found guilty or acquitted of an offence against this chapter in relation to the transaction; and

                  (c)        section 285 (Trafficking offence—presumption if trafficable quantity possessed etc) and section 304 (Supplying offence—presumption if trafficable quantity supplied etc) do not apply.

                  (6)        If the prosecution intends to rely on this section—

                  (a)        that fact must be stated in the charge; and

                  (b)        a description of the conduct that establishes, under this section, that the defendant trafficked in the required quantity of a controlled drug must be stated in the charge or given to the defendant within a reasonable time before the trial.

                  (7)        If a person has been tried and found guilty or acquitted of an offence in a prosecution in which this section was relied on, the person may not be charged with another offence against this chapter that is claimed to have been committed in connection with any of the transactions on which the prosecution relied in that prosecution.

                  (8)        Except as mentioned in subsection (5) (b) or (7), this section does not prevent a person being charged with separate offences in relation to conduct on different occasions.

310            Single offence for trafficking, etc on different occasions

                  (1)        This section applies to an offence against this chapter that involves—

                  (a)        trafficking in controlled drugs on different occasions; or

                  (b)        supplying controlled drugs to a child on different occasions;

whether they are the same or different kinds of drugs.

                  (2)        A person may be charged with a single offence in relation to trafficking in or supplying controlled drugs on different occasions if each occasion was not longer than 7 days apart from another of the occasions.

                  (3)        For the single offence, the quantity of controlled drugs trafficked or supplied is the total of the quantities of the controlled drugs trafficked or supplied on the occasions stated in the charge.

                  (4)        However, the same parcel of controlled drugs cannot be counted more than once.

Example

A person possesses a parcel of a controlled drug for sale (the 1st occasion) and later sells the parcel to someone else (the 2nd occasion) who in turn sells it to another person (the 3rd occasion).  The same parcel of controlled drugs has been trafficked on 3 occasions but the quantity of drugs in the parcel can only be counted once under this section.

Note         An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s4(2)).

                  (5)        If the prosecution intends to rely on this section, particulars of each occasion must be stated in the charge.

                  (6)        This section does not prevent a person being charged with separate offences in relation to conduct on different occasions.

311            Single offence for different parcels trafficked, etc on the same occasion

                  (1)        This section applies to an offence against this chapter that involves—

                  (a)        trafficking in different parcels of controlled drugs on the same occasion; or

                  (b)        manufacturing different parcels of controlled drugs on the same occasion; or

                  (c)        selling different parcels of controlled precursors on the same occasion; or

                  (d)       manufacturing different parcels of controlled precursors on the same occasion; or

                  (e)        possessing different parcels of controlled precursors on the same occasion; or

                  (f)        cultivating different parcels of controlled plants on the same occasion; or

                  (g)        selling different parcels of controlled plants on the same occasion; or

                  (h)        supplying different parcels of controlled drugs to a child on the same occasion;

whether they are the same or different kinds of drug, precursor or plant.

                  (2)        A person may be charged with a single offence in relation to 2 or more of the different parcels of controlled drugs, precursors or plants.

                  (3)        For the single offence, the quantity of controlled drugs, precursors or plants trafficked in, manufactured, sold, possessed, cultivated or supplied is the total of the quantities of the controlled drugs, precursors or plants in the different parcels.

                  (4)        However, if there are different kinds of controlled drugs, precursors or plants in the parcels, this section is subject to section 312.

                  (5)